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Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved. United States Border Issues, Nova Science Publishers, Incorporated, 2009. ProQuest Ebook Central,

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved. United States Border Issues, Nova Science Publishers, Incorporated, 2009. ProQuest Ebook Central,

DEFENSE SECURITY AND STRATEGIES Additional books in this series can be found on Nova‘s website under the Series tab.

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

Additional E-books in this series can be found on Nova‘s website under the E-books tab.

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DEFENSE SECURITY AND STRATEGIES

UNITED STATES BORDER ISSUES

VIVIENNE M. CLANCY

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

EDITOR

Nova Science Publishers, Inc. New York

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Copyright © 2010 by Nova Science Publishers, Inc. All rights reserved. No part of this book may be reproduced, stored in a retrieval system or transmitted in any form or by any means: electronic, electrostatic, magnetic, tape, mechanical photocopying, recording or otherwise without the written permission of the Publisher. For permission to use material from this book please contact us: Telephone 631-231-7269; Fax 631-231-8175 Web Site: http://www.novapublishers.com

NOTICE TO THE READER The Publisher has taken reasonable care in the preparation of this book, but makes no expressed or implied warranty of any kind and assumes no responsibility for any errors or omissions. No liability is assumed for incidental or consequential damages in connection with or arising out of information contained in this book. The Publisher shall not be liable for any special, consequential, or exemplary damages resulting, in whole or in part, from the readers‘ use of, or reliance upon, this material. Any parts of this book based on government reports are so indicated and copyright is claimed for those parts to the extent applicable to compilations of such works. Independent verification should be sought for any data, advice or recommendations contained in this book. In addition, no responsibility is assumed by the publisher for any injury and/or damage to persons or property arising from any methods, products, instructions, ideas or otherwise contained in this publication.

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This publication is designed to provide accurate and authoritative information with regard to the subject matter covered herein. It is sold with the clear understanding that the Publisher is not engaged in rendering legal or any other professional services. If legal or any other expert assistance is required, the services of a competent person should be sought. FROM A DECLARATION OF PARTICIPANTS JOINTLY ADOPTED BY A COMMITTEE OF THE AMERICAN BAR ASSOCIATION AND A COMMITTEE OF PUBLISHERS.

Additonal color graphics may be available in the e-book version of this book. LIBRARY OF CONGRESS CATALOGING-IN-PUBLICATION DATA

United States border issues / editor, Vivienne M. Clancy. p. cm. Includes index. ISBN 978-1-61728-815-9 (eBook) 1. Border security--Government policy--United States. 2. Border security--Economic aspects--United States. 3. Border security--Mexican-American Border Region. 4. Border security--Northern boundary of the United States. 5. National security--United States. 6. Terrorism--United States--Prevention. I. Clancy, Vivienne M. JV6483.U54 2010 363.28'50973--dc22 2010025415

Published by Nova Science Publishers, Inc. New York

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CONTENTS Preface Chapter 1

Border Security: Key Agencies and their Missions Chad C. Haddal

1

Chapter 2

North American Free Trade Agreement (NAFTA) Implementation: The Future of Commercial Trucking across the Mexican Border John Frittelli

7

Chapter 3

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vii

Southwest Border Violence: Issues in Identifying and Measuring Spillover Violence Jennifer E. Lake, Kristin M. Finklea, Mark Eddy, Celinda Franco, Chad C. Haddal, William J. Krouse and Mark A. Rando

37

Chapter 4

Gun Trafficking and the Southwest Border Vivian S. Chu and William J. Krouse

Chapter 5

Border Searches of Laptop Computers and other Electronic Storage Devices Yule Kim

105

Protecting the U.S. Perimeter: Border Searches under the Fourth Amendment Yule Kim

121

Border Security: Barriers along the U.S. International Border Chad C. Haddal, Yule Kim and Michael John Garcia

143

Chapter 6

Chapter 7

77

Chapter Sources

195

Index

197

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PREFACE In the wake of the tragedy of September 11, 2001, the U.S. Congress decided that enhancing the security of the United States' borders was a vitally important component of preventing future terrorist attacks. The Homeland Security Act of 2002 consolidated most federal agencies operating along the U.S. borders, which was charged with securing the borders; territorial waters, terminals, waterways, and air, land, and sea transportation systems of the U.S. and managing the nation's ports of entry. This book examines today's U.S. border issues, key agencies and their missions and the future of commercial trucking across the Mexican border. Also discussed herein is the southwest border violence related to gun and drug-trafficking from Mexico, border searches of laptop computers and other electronic storage devices and expanding the barriers being deployed along the U.S. international land border. Chapter 1- After the massive reorganization of federal agencies precipitated by the creation of the Department of Homeland Security (DHS), there are now four main federal agencies charged with securing the United States‘ borders: the U.S. Customs and Border Protection (CBP), which patrols the border and conducts immigrations, customs, and agricultural inspections at ports of entry; the U.S. Immigrations and Customs Enforcement (ICE), which investigates immigrations and customs violations in the interior of the country; the United States Coast Guard, which provides maritime and port security; and the Transportation Security Administration (TSA), which is responsible for securing the nation‘s land, rail, and air transportation networks. This chapter is meant to serve as a primer on the key federal agencies charged with border security; as such it will briefly describe each agency‘s role in securing our nation‘s borders. In the wake of the tragedy of September 11, 2001, the U.S. Congress decided that enhancing the security of the United States‘ borders was a vitally important component of preventing future terrorist attacks. Before September 11, 2001, border security fell piecemeal under the mandate of many diverse federal departments, including but not limited to the Department of Justice (the Immigration and Naturalization Service); the Department of the Treasury (the Customs Service); the Department of Agriculture (the Animal and Plant Health Inspection Service); and the Department of Transportation (the Coast Guard). The Homeland Security Act of 2002 (P.L. 107-296) consolidated most federal agencies operating along the U.S. borders within the newly formed DHS. Most of these agencies were located in the Directorate of Border and Transportation Security (BTS), which was charged with securing the borders; territorial waters; terminals; waterways; and air, land, and sea

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viii

Vivienne M. Clancy

transportation systems of the United States; and managing the nation‘s ports of entry. The lone exception is the U.S. Coast Guard, which remained a standalone division within DHS. The BTS was composed of three main agencies: (1) the CBP, which is charged with overseeing commercial operations, inspections, and land border patrol functions, (2) ICE, which oversees investigations, alien detentions and removals, air/marine drug interdiction operations, and federal protective services, and (3) the TSA, which is charged with protecting the nation‘s air, land, and rail transportation systems against all forms of attack to ensure freedom of movement for people and commerce. On July 13, 2005, the Secretary of DHS, Michael Chertoff, announced the results of the months-long Second Stage Review (2SR) that he undertook upon being confirmed as DHS Secretary. One of Secretary Chertoff‘s main recommendations, which was agreed to by the DHS Appropriations Conferees, was the elimination of the BTS Directorate. The Secretary announced the creation of a new Office of Policy, which, among other things, assumed the policy coordination responsibilities of the BTS Directorate. The operational agencies that comprised BTS (CBP, ICE, TSA) now report directly to the Secretary and Deputy Secretary of DHS. The goal of this reorganization was to streamline the policy creation process and ensure that DHS policies and regulations are consistent across the department. Additionally, the Federal Air Marshals program was moved out of ICE and back into TSA to increase operational coordination between all aviation security entities in the department. Conceptually speaking, CBP provides the front line responders to immigrations and customs violations and serves as the law enforcement arm of DHS, while ICE serves as the investigative branch. TSA is charged with securing the nation‘s transportation systems, whereas the U.S. Coast Guard also serves an important border security function by patrolling the nation‘s territorial and adjacent international waters against foreign threats. Combined FY2010 appropriations for the border security agencies of DHS equaled $30.96 billion, and the combined full time equivalent (FTE) manpower totaled approximately 180,142 employees. Chapter 2 - NAFTA set forth a schedule for implementing its trucking provisions that would have opened the border states to cross-border trucking competition in 1995 and all of North America in 2000, but full implementation has been stalled because of concern with the safety of Mexican trucks. Congress first addressed these concerns in the FY2002 Department of Transportation Appropriations Act (P.L. 107-87) which set 22 safety-related preconditions for opening the border to long-haul Mexican trucks. In November 2002, the U.S. Department of Transportation announced that all the preconditions had been met and began processing Mexican applications for U.S. long-haul authority. However, a suit over environmental compliance delayed implementation further. After the suit was resolved, in February 2007, the U.S. and Mexican Secretaries of Transportation announced a demonstration project to implement the NAFTA trucking provisions. The purpose of the project was to demonstrate the ability of Mexico-based motor carriers to operate safely in the United States beyond the border commercial zones. Up to 100 Mexico-domiciled carriers would be allowed to operate throughout the United States for one year and Mexico would allow the same for up to 100 U.S.-based carriers. With passage of the U.S. Troop Readiness, Veteran‘s Care, Katrina Recovery, and Iraq Accountability Appropriations Act, 2007 (P.L. 110-28), Congress mandated additional requirements before the project could begin. After failing to defund the demonstration project in the FY2008 Consolidated Appropriations Act (P.L. 110-161), Congress succeeded in terminating the demonstration project through a provision in the

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Vivienne M. Clancy

have recognized trafficker-on-trafficker violence as central to spillover. When defining and analyzing changes in drug trafficking-related violence within the United States to determine whether there has been (or may be in the future) any spillover violence, critical elements include who may be implicated in the violence (both perpetrators and victims), what type of violence may arise, when violence may appear, and where violence may occur (both along the SWB and in the nation‘s interior). Currently, no comprehensive, publicly available data exist that can definitively answer the question of whether there has been a significant spillover of drug trafficking-related violence into the United States. Although anecdotal reports have been mixed, U.S. government officials maintain that there has not yet been a significant spillover. In an examination of data that could provide insight into whether there has been a significant spillover in drug trafficking-related violence from Mexico into the United States, CRS analyzed violent crime data from the Federal Bureau of Investigation‘s Uniform Crime Report program. The data, however, do not allow analysts to determine what proportion of the violent crime rate is related to drug trafficking or, even more specifically, what proportion of drug trafficking-related violent crimes can be attributed to spillover violence. In conclusion, because the trends in the overall violent crime rate may not be indicative of trends in drug trafficking-related violent crimes, CRS is unable to draw definitive claims about trends in drug trafficking-related violence spilling over from Mexico into the United States. Chapter 4 - According to the Department of Justice, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) is the lead federal agency responsible for stopping the illegal flow of firearms, or gun trafficking, from the United States to Mexico. ATF has developed a nationwide strategy to reduce firearms trafficking and violent crime by seeking to prevent convicted felons, drug traffickers, and juvenile gang members from acquiring firearms from gun traffickers. These criminals often acquire firearms from persons who are otherwise not prohibited from possessing firearms, or by buying firearms from corrupt federal firearms licensees (FFLs) who sell firearms off-the-books in an attempt to escape federal regulation. ATF also reports that Mexican drug trafficking organizations (DTOs) are increasingly sending enforcers across the border to hire surrogates (straw purchasers) who buy several ―military-style‖ firearms at a time from FFLs. The DTOs also reportedly favor pistols chambered to accommodate comparatively large cartridges that are capable of piercing through armor vests usually worn by law enforcement officers, and magazines capable of holding more than 10 rounds of ammunition. Less frequently, but no less troubling to law enforcement, the DTOs have also sought .50 caliber sniper rifles that are capable of penetrating bullet-proof glass and lightly armored vehicles. ATF reports that there are around 6,700 FFLs in the United States operating in the Southwest border region of Texas, New Mexico, Arizona, and California. By inspecting the firearms transfer records that FFLs are required by law to maintain, ATF investigators are often able to trace crime guns from their domestic manufacturer or importer to the first retail dealer that sold those firearms to persons in the general public, generating vital leads in criminal investigations. In addition, by inspecting those records, ATF investigators sometimes discover evidence of illegal, off-the-books transfers, straw purchases, and other patterns of suspicious behavior. During FY2006 and FY2007, ATF dedicated approximately 100 special agents (SAs) and 25 industry operations investigators (IOIs) to a Southwest border initiative known as ―Project Gunrunner‖ to disrupt the illegal flow of guns from the United States into Mexico. By the end of FY2008, ATF had deployed 146 SAs and 68 IOIs to the Southwest

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Preface

xi

border to bolster that initiative at a conservatively estimated cost of $32.2 million. The Omnibus Appropriations Act of 2009 included an increase of at least $5 million for Project Gunrunner, and the FY2009 Supplemental Appropriations Act includes an additional $14 million for this initiative. Both the House-passed and Senate-reported FY2010 Commerce, Justice, Science, and Related Agencies appropriations bill (H.R. 2847) would provide ATF with an $18 million increase for Project Gunrunner, an amount equal to the President‘s request. U.S. firearms laws currently govern the possession and transfer of firearms and provide penalties for the violation of such laws. ―Gun trafficking,‖ although not defined by statute, essentially includes the movement or diversion of firearms from legal to illegal markets. This chapter includes legal analyses of three ATF-investigated, Southwest border gun trafficking cases to illustrate the federal statutes that are typically violated as part of wider gun trafficking schemes. The report also examines anti-gun trafficking proposals introduced in the 110th Congress. So far, no similar proposals have been introduced in the 111th Congress. The report concludes with possible policy questions for Congress regarding the magnitude of Southwest border gun trafficking, the use and significance of ATF crime gun trace data, the possible ratification of an Inter-American Gun Trafficking Convention (CIFTA), and the adequacy of the federal statutes designed to deter and reduce illegal gun trafficking. Chapter 5 - As a general rule, the Fourth Amendment of the U.S. Constitution requires government- conducted searches and seizures to be supported by probable cause and a warrant. Federal courts have long recognized that there are many exceptions to these requirements, one of which is the border search exception. The border search exception permits government officials to conduct ―routine‖ searches based on no suspicion of wrongdoing whatsoever. On the other hand, when warrantless border searches are particularly invasive, and thus ―non-routine,‖ they are permissible only when customs officials have, at a minimum, a ―reasonable suspicion‖ of wrongdoing. The federal courts that have addressed this issue have held that the border search exception applies to searches of laptops at the border. Although the Supreme Court has not directly addressed the degree of suspicion needed to search laptops at the border without a warrant, the federal appellate courts that have addressed the issue appear to have concluded that reasonable suspicion is not needed to justify such a search. The Ninth Circuit, in United States v. Arnold, explicitly held that reasonable suspicion is not required to conduct a warrantless search of a laptop at the border. Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE), two agencies within the Department of Homeland Security (DHS) that have roles in border security, have published directives outlining their policies and procedures regarding laptop border searches. Both policies assert that, as a general matter, laptop border searches may be conducted without any individualized suspicion and require reasonable suspicion only in certain circumstances. A bill introduced in the 111th Congress, the Securing our Borders and our Data Act of 2009 (H.R. 239), would impose more rigorous standards for laptop searches than those the federal courts have determined are constitutionally required. Another bill introduced in the 111th Congress, the Border Security Search Accountability Act of 2009 (H.R. 1726), would mandate that the Commissioner of Customs and Border Protection promulgate a rule with respect to the scope of and procedural and record keeping requirements associated with border security searches of electronic devices.

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Chapter 6 - The Fourth Amendment requires that a search or seizure conducted by a governmental agent be reasonable and supported by probable cause. The Supreme Court has interpreted the Fourth Amendment to include a presumptive warrant requirement on all searches and seizures conducted by the government. Any violation of these requirements could result in the suppression of any information derived therefrom. The Supreme Court, however, has also recognized situations that render obtaining a warrant impractical or against the public‘s interest and has accordingly crafted various exceptions to the warrant and probable cause requirements of the Fourth Amendment. Few exceptions to the presumptive warrant and probable cause requirements are more firmly rooted than the ―border search‖ exception. Derived from the sovereign right to stop and examine persons and property crossing into the country, border searches allow customs officials the flexibility to inspect incoming individuals and their belongings and to interdict incoming contraband without having to inform a magistrate before the search. Border searches can also occur in places other than the actual physical border. Two different legal concepts authorize such searches: (1) searches at the functional equivalent of the border; and (2) extended border searches. These concepts allow federal officers to conduct border searches even in situations when it is not feasible to conduct the search at the actual point of entry (e.g., examining a person upon arrival at a U.S. airport rather than during a mid-flight crossing into the country). Courts have determined that border searches usually fall into two categories—routine and nonroutine—though this analysis may no longer apply to searches of vehicles or personal property. Generally, the distinction between ―routine‖ and ―non-routine‖ turns on the level of intrusiveness. Routine border searches are reasonable simply by virtue of the fact that they occur at the border and consist of only a limited intrusion, while non-routine searches generally require ―reasonable suspicion‖ and vary in technique and intrusiveness. This chapter first outlines the statutes authorizing certain federal officers to conduct warrantless searches: 19 U.S.C. § 482 for customs officials and Immigration and Nationality Act (INA) § 287 (codified in 8 U.S.C. § 1357) for immigration officers. It then addresses the scope of the government‘s constitutional authority to search and seize persons and property at the border. It also describes the varying levels of suspicion generally required for each type of border search as interpreted by the courts. Finally, this chapter lists several bills before the 111th Congress that address border searches: two of which, H.R. 239 (the Securing our Borders and our Data Act of 2009) and H.R. 1726 (the Border Security Search Accountability Act of 2009), address border searches of laptops and other electronic storage devices. H.R. 1900 would provide emergency deployments of federal officers to the border and would authorize funds to local law enforcement to stem the illegal trafficking of firearms into Mexico. S. 205, H.R. 495, and H.R. 1448 would also authorize funds for Bureau of Alcohol, Tobacco, Firearms, and Explosives agents to interdict the illegal trafficking of firearms to Mexico. This chapter does not address interior searches and seizures performed by immigration personnel since they are not traditional ―border searches.‖ Chapter 7 - Congress has repeatedly shown interest in examining and expanding the barriers being deployed along the U.S. international land border. The United States Border Patrol (USBP) deploys fencing, which aims to impede the illegal entry of individuals, and vehicle barriers, which aim to impede the illegal entry of vehicles (but not individuals) along the border.

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xiii

The USBP first began erecting physical barriers in 1990 to deter illegal entries and drug smuggling in its San Diego sector. The ensuing 14-mile-long San Diego ―primary fence‖ formed part of the USBP‘s ―Prevention Through Deterrence‖ strategy, which called for reducing unauthorized migration by placing agents and resources directly on the border along population centers in order to deter would-be migrants from entering the country. In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act which, among other things, explicitly gave the Attorney General (now the Secretary of the Department of Homeland Security) broad authority to construct barriers along the border and authorized the construction of a secondary layer of fencing to buttress the completed 14-mile primary fence. Construction of the secondary fence stalled due to environmental concerns raised by the California Coastal Commission. In 2005, Congress passed the REAL ID Act that authorized the Secretary of the Department of Homeland Security (DHS) to waive all legal requirements in order to expedite the construction of border barriers. DHS has announced it will use this waiver authority to complete the San Diego fence. The Secure Fence Act of 2006 directed DHS to construct 850 miles of additional border fencing. This requirement was subsequently modified by the Consolidated Appropriations Act, 2008 (P.L. 110-161), which was enacted into law on December 26, 2007. The Act requires the Secretary of Homeland Security to construct fencing along not fewer than 700 miles of the southwest border. While the San Diego fence, combined with an increase in agents and other resources in the USBP‘s San Diego sector, has proven effective in reducing the number of apprehensions made in that sector, there is considerable evidence that the flow of illegal immigration has adapted to this enforcement posture and has shifted to the more remote areas of the Arizona desert. Nationally, the USBP made 1.2 million apprehensions in 1992 and again in 2004, suggesting that the increased enforcement in San Diego sector has had little impact on overall apprehensions. In addition to border fencing, the USBP deploys both permanent and temporary vehicle barriers to the border. Temporary vehicle barriers are typically chained together and can be moved to different locations at the USBP‘s discretion. Permanent vehicle barriers are embedded in the ground and are meant to remain in one location. A number of policy issues concerning border barriers generally and fencing specifically may be of interest to Congress, including, but not limited, to their effectiveness, costs versus benefits, location, design, environmental impact, potential diplomatic ramifications, and the costs of acquiring the land needed for construction.

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In: United States Border Issues Editor: Vivienne M. Clancy

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Chapter 1

BORDER SECURITY: KEY AGENCIES AND THEIR MISSIONS Chad C. Haddal

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SUMMARY After the massive reorganization of federal agencies precipitated by the creation of the Department of Homeland Security (DHS), there are now four main federal agencies charged with securing the United States‘ borders: the U.S. Customs and Border Protection (CBP), which patrols the border and conducts immigrations, customs, and agricultural inspections at ports of entry; the U.S. Immigrations and Customs Enforcement (ICE), which investigates immigrations and customs violations in the interior of the country; the United States Coast Guard, which provides maritime and port security; and the Transportation Security Administration (TSA), which is responsible for securing the nation‘s land, rail, and air transportation networks. This chapter is meant to serve as a primer on the key federal agencies charged with border security; as such it will briefly describe each agency‘s role in securing our nation‘s borders. In the wake of the tragedy of September 11, 2001, the U.S. Congress decided that enhancing the security of the United States‘ borders was a vitally important component of preventing future terrorist attacks. Before September 11, 2001, border security fell piecemeal under the mandate of many diverse federal departments, including but not limited to the Department of Justice (the Immigration and Naturalization Service); the Department of the Treasury (the Customs Service); the Department of Agriculture (the Animal and Plant Health Inspection Service); and the Department of Transportation (the Coast Guard). The Homeland Security Act of 2002 (P.L. 107-296) consolidated most federal agencies operating along the U.S. borders within the newly formed DHS. Most of these agencies were located in the Directorate of Border and Transportation Security (BTS), which was charged with securing the borders; territorial waters; terminals; waterways; and air, land, and sea transportation systems of the United States; and managing the nation‘s ports of entry.1 The lone exception is the U.S. Coast Guard, which remained a standalone division within DHS.

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The BTS was composed of three main agencies: (1) the CBP, which is charged with overseeing commercial operations, inspections, and land border patrol functions, (2) ICE, which oversees investigations, alien detentions and removals, air/marine drug interdiction operations, and federal protective services, and (3) the TSA, which is charged with protecting the nation‘s air, land, and rail transportation systems against all forms of attack to ensure freedom of movement for people and commerce. On July 13, 2005, the Secretary of DHS, Michael Chertoff, announced the results of the months-long Second Stage Review (2SR) that he undertook upon being confirmed as DHS Secretary. One of Secretary Chertoff‘s main recommendations, which was agreed to by the DHS Appropriations Conferees, was the elimination of the BTS Directorate. The Secretary announced the creation of a new Office of Policy, which, among other things, assumed the policy coordination responsibilities of the BTS Directorate. The operational agencies that comprised BTS (CBP, ICE, TSA) now report directly to the Secretary and Deputy Secretary of DHS. The goal of this reorganization was to streamline the policy creation process and ensure that DHS policies and regulations are consistent across the department. Additionally, the Federal Air Marshals program was moved out of ICE and back into TSA to increase operational coordination between all aviation security entities in the department. Conceptually speaking, CBP provides the front line responders2 to immigrations and customs violations and serves as the law enforcement arm of DHS, while ICE serves as the investigative branch. TSA is charged with securing the nation‘s transportation systems, whereas the U.S. Coast Guard also serves an important border security function by patrolling the nation‘s territorial and adjacent international waters against foreign threats. Combined FY2010 appropriations for the border security agencies of DHS equaled $30.96 billion,3 and the combined full time equivalent (FTE) manpower totaled approximately 180,142 employees.4

THE U.S. CUSTOMS AND BORDER PROTECTION (CBP) CBP combined portions of the previous border law enforcement agencies under one administrative umbrella. This involved absorbing employees from the Immigration and Naturalization Service (INS), the Border Patrol, the Customs Service, and the Department of Agriculture. CBP‘s mission is to prevent terrorists and terrorist weapons from entering the country, provide security at U.S. borders and ports of entry, apprehend illegal immigrants, stem the flow of illegal drugs, and protect American agricultural and economic interests from harmful pests and diseases.5 As it performs its official missions, CBP maintains two overarching and sometimes conflicting goals: increasing security while facilitating legitimate trade and travel.6 In FY2010, CBP‘s appropriated net budget authority totaled $10.13 billion7 and manpower totaled approximately 58,105 FTE. Between official ports of entry, the U.S. Border Patrol (USBP)—a component of CBP— enforces U.S. immigration law and other federal laws along the border. As currently comprised, the USBP is the uniformed law enforcement arm of the Department of Homeland Security. Its primary mission is to detect and prevent the entry of terrorists, weapons of mass destruction, and unauthorized aliens into the country, and to interdict drug smugglers and other criminals. In the course of discharging its duties the USBP patrols over 8,000 miles of

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Border Security: Key Agencies and their Missions

3

our international borders with Mexico and Canada and the coastal waters around Florida and Puerto Rico. At official ports of entry, CBP officers are responsible for conducting immigrations, customs, and agricultural inspections on entering aliens. As a result of the ―one face at the border‖ initiative, CBP inspectors are being cross-trained to perform all three types of inspections in order to streamline the border crossing process. This initiative unifies the prior inspections processes, providing entering aliens with one primary inspector who is trained to determine whether a more detailed secondary inspection is required.8 CBP inspectors enforce immigration law by examining and verifying the travel documents of incoming international travelers to ensure they have a legal right to enter the country. On the customs side, CBP inspectors ensure that all imports and exports comply with U.S. laws and regulations, collect and protect U.S. revenues, and guard against the smuggling of contraband. Additionally, CBP is responsible for conducting agricultural inspections at ports of entry in order to enforce a wide array of animal and plant protection laws. In order to carry out these varied functions, CBP inspectors have a broad range of powers to inspect all persons, vehicles, conveyances, merchandise, and baggage entering the United States from a foreign country.

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U.S. IMMIGRATIONS AND CUSTOMS ENFORCEMENT (ICE) ICE merged the investigative functions of the former INS and the Customs Service, the INS detention and removal functions, most INS intelligence operations, and the Federal Protective Service (FPS). This makes ICE the principal investigative arm for DHS. ICE‘s mission is to detect and prevent terrorist and criminal acts by targeting the people, money, and materials that support terrorist and criminal networks.9 As such they are an important component of our nation‘s border security network even though their main focus is on interior enforcement. In FY2010, ICE appropriations totaled $5.44 billion,10 and the agency had approximately 20,134 FTE employees. Unlike CBP, whose jurisdiction is confined to law enforcement activities along the border, ICE special agents investigate immigrations and customs violations in the interior of the United States. ICE‘s mandate includes uncovering national security threats such as weapons of mass destruction or potential terrorists, identifying criminal aliens for removal, probing immigration-related document and benefit fraud, investigating work-site immigration violations, exposing alien and contraband smuggling operations, interdicting narcotics shipments,11 and detaining illegal immigrants and ensuring their departure (or removal) from the United States.12 ICE is also responsible for the collection, analysis and dissemination of strategic and tactical intelligence data pertaining to homeland security, infrastructure protection, and the illegal movement of people, money, and cargo within the United States.13

THE UNITED STATES COAST GUARD The Coast Guard was incorporated into DHS as a standalone agency by P.L. 107-296. The Coast Guard‘s overall mission is to protect the public, the environment, and U.S.

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economic interests in maritime regions—at the nation‘s ports and waterways, along the coast, and in international waters.14 The Coast Guard is thus the nation‘s principal maritime law enforcement authority and the lead federal agency for the maritime component of homeland security, including port security. Among other things, the Coast Guard is responsible for evaluating, boarding, and inspecting commercial ships as they approach U.S. waters; countering terrorist threats in U.S. ports; and for helping to protect U.S. Navy ships in U.S. ports. A high-ranking Coast Guard officer in each port area serves as the Captain of the Port and is the lead federal official responsible for the security and safety of the vessels and waterways in their geographic zone.15 In FY2010, Coast Guard appropriated budget authority totaled $10.14 billion, and the agency had approximately 49,954 FTE military and civilian employees. As part of Operation Noble Eagle (military operations in homeland defense and civil support to U.S. federal, state and local agencies), the Coast Guard is at a heightened state of alert protecting more than 361 ports and 95,000 miles of coastline. The Coast Guard‘s homeland security role includes protecting ports, the flow of commerce, and the marine transportation system from terrorism; maintaining maritime border security against illegal drugs, illegal aliens, firearms, and weapons of mass destruction; ensuring that the U.S. can rapidly deploy and resupply military assets by maintaining the Coast Guard at a high state of readiness as well as by keeping marine transportation open for the other military services; protecting against illegal fishing and indiscriminate destruction of living marine resources; preventing and responding to oil and hazardous material spills; and coordinating efforts and intelligence with federal, state, and local agencies.16

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THE TRANSPORTATION SECURITY ADMINISTRATION (TSA) The TSA was created as a direct result of the events of September 11 and is charged with protecting the United States‘ air, land, and rail transportation systems to ensure freedom of movement for people and commerce. The Aviation and Transportation Security Act (ATSA, P.L. 107-71) created the TSA and included provisions that established a federal baggage screener workforce, required checked baggage to be screened by explosive detection systems, and significantly expanded FAMS. In 2002, TSA was transferred to the newly formed DHS from the Department of Transportation; as previously noted, in 2003 the Federal Air Marshal program was taken out of TSA and transferred to ICE. In FY2006, the program was transferred back to TSA. In FY2010, TSA appropriations totaled $5.26 billion,17 and the agency had approximately 51,949 FTE employees. To achieve its mission of securing the nation‘s aviation, TSA assumed responsibility for screening air passengers and baggage—a function that had previously resided with the air carriers. TSA is also charged with ensuring the security of air cargo and overseeing security measures at airports to limit access to restricted areas, secure airport perimeters, and conduct background checks for airport personnel with access to secure areas, among other things.18 However, an opt out provision in ATSA will permit every airport with federal screeners to request a switch to private screeners commencing in November 2004.19 Additionally, as a result of the 2SR, the Federal Air Marshals program has been transferred back to TSA. FAMS

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is responsible for detecting, deterring and defeating hostile acts targeting U.S. air carriers, airports, passengers and crews by placing undercover armed agents in airports and on flights.

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CONCLUSION This chapter has briefly outlined the roles and responsibilities of the four main agencies within the DHS charged with securing our nation‘s borders: the CBP, ICE, the U.S. Coast Guard, and the TSA. It should be noted, however, that although the Homeland Security Act of 2002 consolidated all the agencies with primary border security roles in DHS, many other federal agencies are involved in the difficult task of securing our nation‘s borders. Although border security may not be in their central mission, they nevertheless provide important border security functions. These agencies include, but are not limited to the U.S. Citizenship and Immigrations Services within DHS, which processes permanent residency and citizenship applications, as well as asylum and refugee processing; the Department of State, which is responsible for visa issuances overseas; the Department of Agriculture, which establishes the agricultural policies that CBP Inspectors execute; the Department of Justice, whose law enforcement branches (the Federal Bureau of Investigation and Drug Enforcement Agency) coordinate with CBP and ICE agents when their investigations involve border or customs violations; the Department of Health and Human Services, through the Food and Drug Administration and the Center for Disease Control; the Department of Transportation, whose Federal Aviation Administration monitors all airplanes entering American air space from abroad; the Treasury Department, whose Bureau of Alcohol, Tobacco, and Firearms investigates the smuggling of guns into the country; and lastly the Central Intelligence Agency, which is an important player in the efforts to keep terrorists and other foreign agents from entering the country. Additionally, due to their location, state and local responders from jurisdictions along the Canadian and Mexican borders also play a significant role in the efforts to secure our nation‘s borders.

End Notes 1

Although the functions of CBP and ICE were transferred under the P.L. 107-296, the actual agencies were created by the George W. Bush Administration. For a more detailed information on DHS, see CRS Report RL31549, Department of Homeland Security: Consolidation of Border and Transportation Security Agencies, by Jennifer E. Lake. 2 Some argue that the State Department‘s Consular posts abroad provide the first line of defense by reviewing visa applications and determining which foreign nationals will be provided with the documentation required to legally enter the country. 3 This number, and all the budget numbers in the body of this chapter, represents the net appropriation for the four agencies discussed from P.L. 111-83, the Department of Homeland Security Appropriations Act, 2010. For a more detailed breakdown of DHS appropriations for FY2010, including the gross budget authority provided to each agency, see CRS Report R40642, Homeland Security Department: FY2010 Appropriations, coordinated by Jennifer E. Lake and Chad C. Haddal. 4 All manpower estimates are based upon requested FTEs taken from The Department of Homeland Security,Congressional Budget Justification, Department of Homeland Security Fiscal Year 2010. Since all DHS agencies underdiscussion in this chapter were either fully funded or almost fully funded, the qualifying phrase of ―approximately‖ isused in conjunction with all FTE estimates. 5 U.S. Congress, House Appropriations Committee, Department of Homeland Security Appropriations Bill, 2005, 108th Cong., 2nd sess., H.Rept. 108-541.

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U.S. Customs and Border Protection, Performance and Annual Report: Fiscal Year 2003, p. 25. The gross budget authority appropriated for CBP in FY2010 equaled $11.56 billion. 8 Department of Homeland Security, Office of the Press Secretary, ―Homeland Security Announces New Initiatives,‖press release, September 2, 2003. 9 U.S. Immigrations and Customs Enforcement, Border Security and Immigration Enforcement Fact Sheet, at http://www.ice.gov/graphics/news/factsheets/061704det_FS.htm. 10 The gross budget authority appropriated for ICE in FY2010 equaled $5.74 billion. 11 U.S. Immigrations and Customs Enforcement, Office of Investigations Fact Sheet, http://www .ice.gov/graphics/news/factsheets/investigation_FS.htm. 12 U.S. Immigrations and Customs Enforcement Organization, at http://www.ice.gov/graphics/about/organization/index.htm. 13 U.S. Immigrations and Customs Enforcement, Office of Intelligence Organization, at http://www .ice.gov/graphics/about/organization/org_intell.htm. 14 U.S. Coast Guard, Overview at http://www.uscg.mil/overview/. 15 For an in depth discussion of the Coast Guard and port security, see CRS Report RS21125, Homeland Security:Coast Guard Operations - Background and Issues for Congress, by Ronald O‘Rourke, and CRS Report RL31733, Portand Maritime Security: Background and Issues for Congress, by John Frittelli. 16 U.S. Coast Guard, Homeland Security Factcard, at http://www.uscg.mil/hq/g-cp/comrel/factfile/Factcards /Homeland.htm. 17 The gross budget authority appropriated for the TSA in FY2010 equaled $7.66 billion 18 U.S. General Accounting Office, Aviation Security: Efforts to Measure Effectiveness and Address Challenges, GAO-04-232T, November 5, 2003, pp. 5-6. 19 See CRS Report RL32383, A Return to Private Security Screening at Airports?: Background and Issues Regarding the Opt-Out Provision of the Aviation and Transportation Security Act, by Bart Elias.

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Chapter 2

NORTH AMERICAN FREE TRADE AGREEMENT (NAFTA) IMPLEMENTATION: THE FUTURE OF COMMERCIAL TRUCKING ACROSS THE MEXICAN BORDER John Frittelli

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SUMMARY NAFTA set forth a schedule for implementing its trucking provisions that would have opened the border states to cross-border trucking competition in 1995 and all of North America in 2000, but full implementation has been stalled because of concern with the safety of Mexican trucks. Congress first addressed these concerns in the FY2002 Department of Transportation Appropriations Act (P.L. 107-87) which set 22 safety-related preconditions for opening the border to long-haul Mexican trucks. In November 2002, the U.S. Department of Transportation announced that all the preconditions had been met and began processing Mexican applications for U.S. long-haul authority. However, a suit over environmental compliance delayed implementation further. After the suit was resolved, in February 2007, the U.S. and Mexican Secretaries of Transportation announced a demonstration project to implement the NAFTA trucking provisions. The purpose of the project was to demonstrate the ability of Mexico-based motor carriers to operate safely in the United States beyond the border commercial zones. Up to 100 Mexico-domiciled carriers would be allowed to operate throughout the United States for one year and Mexico would allow the same for up to 100 U.S.-based carriers. With passage of the U.S. Troop Readiness, Veteran‘s Care, Katrina Recovery, and Iraq Accountability Appropriations Act, 2007 (P.L. 110-28), Congress mandated additional requirements before the project could begin. After failing to defund the demonstration project in the FY2008 Consolidated Appropriations Act (P.L. 110-161), Congress succeeded in terminating the demonstration project through a provision in the FY2009 Omnibus Appropriations Act (P.L. 111-8). Subsequently, Mexico announced it would retaliate by increasing import duties on 90 U.S. products. The Obama Administration

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has indicated it intends to propose a revamped program that will address the concerns of Congress. The FY2010 Consolidated Appropriations Act (P.L. 111-117) passed in December 2009 did not preclude funds from being spent on a long-haul Mexican truck pilot program, provided the terms and conditions stipulated in section 350 of P.L. 107-87 and section 6901 of P.L. 110-28 were satisfied. One truck safety statistic, ―out-of-service‖ rates, indicates that Mexican trucks operating in the United States are now safer than they were a decade ago. The data indicate that Mexican trucks and drivers have a comparable safety record to U.S. truckers. Another study indicates that the truck driver is usually the more critical factor in causing accidents than a safety defect with the truck itself. Service characteristics of long-haul trucking suggest that substandard carriers would likely not succeed in this market. As shipment distance increases, the relative cost of trucking compared to rail increases, and thus shippers utilizing long-haul trucking are willing to pay more because they require premium service, such as precise delivery windows or cargo refrigeration. These exacting service requirements would seem to disqualify truckers with unreliable equipment or incompetent drivers. In contrast, the shorthaul ―drayage‖ carriers that Mexican long-haul carriers would displace, typically use older equipment because of the many hours spent idling awaiting customs processing at the border. If Mexican carriers do eventually receive long-haul authority, the short term impact is expected to be gradual as Mexican firms deal with a number of stumbling blocks, including lack of prearranged back hauls and higher insurance and capital costs, in addition to the customs processing delays. In the long run, use of drayage companies is likely to decline as they lose part of their market share to Mexican long-haul carriers. The most common trips for these carriers will probably be from the Mexican interior to warehouse facilities on the U.S. side of the border or to nearby cities in the border states.

NAFTA’S COMMERCIAL TRUCKING PROVISIONS: BACKGROUND AND IMPLEMENTATION HISTORY NAFTA set forth a schedule for implementation of its trucking provisions that would have opened the border states to cross-border trucking competition on December 17, 1995, and all of North America on January 1, 2000. However, because of known safety concerns with Mexican trucks, the provisions were never implemented. The U.S. Department of Transportation (U.S. DOT) decided that until safety concerns about Mexican trucks were resolved, the trucks would continue to be restricted to the commercial zones just along the border. (These commercial zones generally extend from about 3 miles to 20 miles into the United States at official ports of entry so that Mexican trucks, after clearing customs, can continue on to make local deliveries).1 Mexican trucks, inspected from January 1996 to December 1996, were put out of service 45% of the time compared to a U.S. truck out-ofservice rate of 28%.2 At the time, Mexican drivers operated without hours-of-service limits and maintained no driver log books. In addition, Mexican trucks reportedly were not required to have front brakes and were allowed a gross vehicle weight 17,000 pounds heavier than allowed on U.S. roads. The wage differential between Mexican and U.S. long-haul drivers was also an issue of concern. Some labor unions and their supporters expressed concerns that

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the wage differential would lead to a loss of jobs for U.S. commercial truck drivers, especially in the border states and along the major highway trade corridors in the United States. Despite ongoing bilateral consultations aimed at bringing the Mexican trucks and drivers up to U.S. safety requirements, no agreement was reached and in 1998 Mexico protested the postponement of NAFTA trucking provisions under NAFTA dispute settlement procedures. The final report of the arbitration panel concluded that the blanket refusal to process the applications of Mexican motor carriers was in breach of the NAFTA obligations of the United States and that alleged deficiencies in Mexico‘s regulation of commercial trucking did not relieve the United States of its treaty obligations. The panel did, however, state that the United States could subject Mexican carriers to different requirements than those that apply to U.S. and Canadian carriers.3 The Bush Administration originally set the end of 2001 as a goal for the U.S. Federal Motor Carrier Safety Administration (FMCSA) to begin processing Mexican applications seeking operating authority throughout the United States. Congress, however, included 22 preconditions for opening the border beyond the commercial zone to Mexican trucking in the FY2002 Department of Transportation Appropriations Act (P.L. 107-87). Among the 22 preconditions in the act were the following requirements:4 



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 



  

all Mexican motor carriers must undergo U.S. DOT safety examinations prior tobeing granted provisional operating authority, with at least 50% of such carrierexaminations to be conducted on-site in Mexico; Mexican carriers applying to operate beyond the commercial zone must have adistinctive U.S. DOT number (that distinguishes them from Mexican truckscertified to operate within the zone only) and must undergo safety monitoringinitially and during an 18-month provisional period; Mexican motor carriers must all pass a full safety compliance review prior toreceiving permanent operating authority; federal and state inspectors must verify the validity of the license of every drivercarrying hazardous materials or undergoing a Level I safety inspection, as well asthe licenses of 50% of all other drivers; Mexican carriers, operating under provisional authority, and for three years afterreceiving permanent authority, must display a Commercial Vehicle Safety Allianceinspection decal (which are good for 90 days), verifying satisfactory completion ofa safety inspection; weigh-in-motion scales must be installed at the ten highest volume crossings; Mexican trucks may only cross at border crossings where a certified motor carriersafety inspector is on duty; and a number of other safety reviews and studies must take place.

These requirements are in addition to requirements that predate the enactment of P.L. 107-87, including requirements that Mexican carriers meet all U.S. safety (hours of service and log book rules, alcohol and drug tests, etc.) and insurance requirements.5 On November 27, 2002, then Secretary of Transportation, Norman Y. Mineta, announced that all the preconditions mandated in the FY2002 Appropriations Act had been met and directed the FMCSA to act on the applications of Mexican motor carriers seeking authority to

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transport international cargo beyond the U.S. border commercial zones.6 On January 16, 2003, however, the Ninth Circuit Court of Appeals, in Public Citizen v. Department of Transportation, delayed implementation pending completion of a National Environmental Policy Act (NEPA) environmental impact statement (EIS) and a Clean Air Act (CAA) conformity determination. FMCSA began the EIS process and has also filed a petition asking the Supreme Court to review the 9th Circuit Court decision in Public Citizen v. DOT.7 On June 7, 2004, the Court reversed the 9th Circuit Court‘s decision.8 In January 2005, the U.S. DOT Inspector General (DOT IG) issued a report that the FMCSA had sufficient staff, facilities, equipment, and procedures in place to substantially meet eight of the 22 requirements which Congress had requested the DOT IG to review as specified in section 350 of the DOT FY2002 Appropriations Act (P.L. 107-87). In February 2007, the U.S. and Mexican Secretaries of Transportation announced a demonstration project to implement certain NAFTA trucking provisions. As stated in the Federal Register on May 1, 2007,9 the project was to demonstrate the ability of Mexico-based motor carriers to operate safely in the United States beyond the commercial zones. This would be accomplished by the Mexican-based carriers adopting certain safety programs and by the monitoring and enforcement activities established by U.S. DOT. Up to 100 Mexicodomiciled carriers would be allowed to operate throughout the United States for one year and Mexico would allow the same for up to 100 U.S.-based carriers. The Mexican carriers and truck drivers were required to comply with all U.S. regulations applicable to trucking, including those related to safety, customs, immigration, vehicle registration and taxation, and fuel taxation. These trucks were to be carefully monitored by FMCSA and state law enforcement, a joint U.S.-Mexico monitoring group, and an independent U.S. evaluation panel. Data would be collected and evaluated at the end of the demonstration project before considering further implementation of NAFTA trucking provisions. On April 30, 2007 the U.S. DOT announced that the demonstration project would not start until Mexico was ready with its reciprocal program to allow U.S.-trucks into Mexico.10 On May 24, 2007, with passage of the U.S. Troop Readiness, Veterans‘ Care, Katrina Recovery, and Iraq Accountability Appropriations Act, 2007 (P.L. 110-28, section 6901), Congress mandated additional requirements before the project could begin. Among them was the requirement that Mexico have its program to allow U.S. trucks to cross into Mexico ready to proceed, that the FMCSA first seek public comment on five aspects of the demonstration project, that the demonstration project meet the same requirements of a ―pilot program‖ as defined at 49 U.S.C. 31315(c), and that the DOT IG review the U.S. DOT‘s program as to whether sufficient measures were in place to ensure the safety of Mexican trucks.11 This act also prohibited Mexican carriers of hazardous materials and buses from participating in the demonstration project. On August 17, 2007, the FMCSA announced its intent to proceed with the project, once the DOT IG issued its review.12 On September 6, 2007, the DOT IG issued his report and U.S. DOT issued a letter to Congress addressing the issues raised by the DOT IG. The demonstration project began the same day. On September 27, 2007, U.S. DOT announced that it would outfit long-haul Mexican trucks operating in the United States with GPS devices (as well as U.S.-based long-haul carriers operating in Mexico) in order to enforce hours-of-service and cabotage13 prohibitions, as well as to time and date stamp border and state crossings. The U.S. DOT entered into a contract with the DOD for $500,000 to install these devices and as of October 2008, almost all of the Mexican trucks participating in the demonstration project had been outfitted. The

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U.S. DOT did not pay for full GPS capability; the GPS units provide periodic (every 30 minutes or more) tracking ―pings‖ instead of continuous tracking. In December 2007, Congress passed the FY2008 Consolidated Appropriations Act (P.L. 110-161) which included a provision prohibiting any funding from being used ―to establish‖ a cross-border trucking program. The Administration concluded that the demonstration project could continue because it had already been established. The Teamsters Union and environmental groups filed suit in the 9th Circuit Court of Appeals in San Francisco and in oral arguments in February 2008 argued that the demonstration project should end, but a decision is still pending. On March 11, 2008, marking six months of the project, the U.S. DOT testified before the Senate Commerce Committee regarding the demonstration project and stated that FMCSA was ―checking‖14 100% of the long-haul Mexican carriers as they crossed the border to check that the vehicles have the proper safety decals (as a result of passing a pre-authority safety audit), the driver has a valid license, and that the driver is proficient in English.15 (Statutorily, the FMCSA is only required to check 50% of the drivers at the border for a valid license).A Mexican driver‘s English proficiency is tested by asking a series of questions in English and requiring the driver to answer in English. The driver is also shown a set of U.S. road signs and the driver must explain their meaning in either English or Spanish. The U.S. DOT also stated that since 1995, the FMCSA had spent more than $500 million to improve border inspection stations and hired 125 federal safety inspectors, 149 auditors and investigators, and that the southern border states had hired an additional 349 inspectors. The DOT IG also issued a six month interim report.16 On August 4, 2008 the U.S. DOT announced a two year extension of the project because only 29 Mexican carriers had participated thus far. In October 2008, an independent evaluation panel (IEP) appointed by the FMCSA released its report evaluating the demonstration project after one year.17 The panel consisted of a former U.S. Representative, a former U.S. DOT Deputy Secretary, and a former DOT IG. In March 2009, Congress passed the FY2009 Omnibus Appropriations Act (P.L. 111-8), which included a provision with unequivocal language terminating the demonstration project. In response to the abrupt end of the program, the Mexican government announced that it would retaliate by increasing duties on 90 U.S. products with an import value of $2.4 billion. The tariffs, effective as of March 19, 2009, range from 10% to 45% and cover a range of products that include fruit, vegetables, home appliances, consumer products, and paper.18 The Obama Administration has stated it is working on a new program to satisfy the concerns of Congress and the country‘s NAFTA commitments.19 In December 2009, Congress passed the FY2010 Consolidated Appropriations Act (P.L. 111-117), which did not preclude funds from being spent on a long-haul Mexican truck pilot program, provided the terms and conditions stipulated in section 350 of P.L. 107-87 and section 6901 of P.L. 110-28 (see above) were satisfied.

Demonstration Project Results after One Year At the close of the first year of the demonstration project (September 6, 2008), 29 Mexican carriers had received long-haul authority to operate in the United States and 118

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Mexican trucks were pre-inspected on-site in Mexico as part of the pre-approval process. These 29 Mexican carriers indicated they intended to use about 110 different drivers for longhaul moves into the United States. Two of the Mexican carriers subsequently withdrew from the program and two carriers never sent any trucks to the border. During the year, the participating firms‘ trucks crossed the border 12,516 times to make U.S. deliveries. To put this number in perspective, in 2007, 4.8 million Mexican trucks crossed the border, about 20,000 crossings per weekday. About 775 Mexican carriers submitted applications to participate in the project, of these:  





340 applications were rejected because they were incomplete; 138 carriers were rejected after initial review because of alleged security issues,they intended to carry hazardous material or passengers, or because they had unpaid FMCSA penalties or other unresolved safety issues; 297 applications were put on hold because the carrier could not be reached at thecontact information provided or because when contacted the applicant had decided not to further pursue long-haul authority; and of the 100 carriers that had undergone the Pre-Authorization Safety Audit (PASA),32 failed the audit.

As of August 6, 2008, ten U.S. carriers were participating in Mexico‘s reciprocal project. These carriers were operating 55 trucks making 2,245 trips into Mexico.20

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TRUCK SAFETY LINKAGE TO SERVICE CHARACTERISTICS The average value of the cargo in a truck from Mexico is about $50,000. The cost of transporting that cargo is a small fraction of the cargo‘s value. While price is important when choosing a trucker, the buyer or seller of the cargo (the Mexican exporter or U.S. importer) is equally concerned with the trucker‘s reliability and performance. To save a few dollars in trucking costs, a shipper is not likely to risk loss of the cargo or damage to it because the truck crashed, nor risk a missed delivery because the trucker was put out of service at a roadside safety inspection. Because long-haul truck cargo is typically higher value and time sensitive, reliability and performance is even more critical for long-haul truckers. While trucks carrying any type of cargo can be involved in an accident, the safety record of different categories of trucks indicate tendencies which are useful in evaluating the safety risk posed by Mexican trucks.

“Long-Haul” Trucking Defined Although opening the border to Mexican long-haul trucks conjures up images of encounters with these trucks anywhere in the United States, the economics of long-haul trucking will limit most Mexican trucks to the border states. Results from the demonstration project bear this out. Of the 12,516 trips made by Mexican project participants, only about 11.5% of these trips (1,439 trips, about 6 per weekday) were actually for ―long-haul‖

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deliveries—that is, for destinations beyond the commercial zone. Moreover, the Independent Evaluation Panel‘s (IEP) review of FMCSA data indicate that only 4% of the 1,439 long-haul trips (80 trips) over the course of the year were to destinations beyond a border state.21 Almost all (95%) of the ―long-haul‖ trips were to destinations within Texas and California. Only a handful of long-haul trips were to destinations to the two other border states, New Mexico and Arizona. The IEP also reported that more than 30 states had not encountered a Mexican project participant at a roadside inspection.22 Because of the cost, relatively few trucks haul loads for long-distances. For example, in the United States, about one-half of all trucks typically travel within 50 miles of their home base and almost three-fourths stay within their home state.23 Only 3% of the total tons that U.S. trucks carry as a single mode shipment are hauled 750 miles or greater (750 miles is about the distance between El Paso, TX and Wichita, KS).24 Conversely, nearly 80% is hauled less than 100 miles (about the distance between Baltimore and Philadelphia). Railroads are often a cheaper alternative for shipments over 500-750 miles and in the United States they capture an increasing share of the truck/rail market as the distance and volume of freight increases in a particular corridor. Truckload carriers are among the largest customers of the railroads, putting their trailers on the railroad for the line-haul portion of a move. Kansas City Southern Railroad, which markets itself as the ―NAFTA railroad,‖ has a particularly large stake in Mexico-U.S. cross-border traffic. It and other U.S. railroads have been making infrastructure improvements on routes to Mexico to better compete with trucks for cross-border freight. Railroads carry about 15% of the cargo units and value of imports from Mexico by land modes (truck and rail) and 25% of the weight.25 Thus, competition from railroads is one limiter of the market potential for long-haul trucking across the border. The market characteristics of long-haul trucking suggest that carriers with substandard equipment or unreliable drivers would not compete successfully for this business. As shipment distance increases, the relative cost of shipping by truck rather than by rail increases. Consequently, truck freight that is hauled long-distances tends to be higher-value, requiring expedited delivery, and often requiring refrigeration. Trucks carry about 95% of refrigerated (―reefer‖) cargo, even over distances that otherwise would be rail competitive, because trucks have proven to be more reliable than railroads in keeping the cargo at the required temperature. Fruits, vegetables, beverages, confectionary and other products requiring either refrigeration or temperature protection account for over a quarter of the total weight of cargo imported in trucks from Mexico.26 Auto parts are another major commodity group that is imported from Mexico in trucks. Auto manufacturers are credited with inventing the concept of ―just-in-time‖ shipping schedules and have since advanced to the concept of ―just-in-sequence‖ deliveries. This requires trucks to deliver some parts just as they are needed on the assembly line, requiring a delivery window that may be measured in minutes. Because of the more demanding service requirements associated with long-haul truck cargo, it seems plausible that shippers of such cargo would choose carriers with modern equipment, reliable drivers, and a track record of on-time performance.

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Short-Haul Trucking over the Border The short-haul truck market, ―drayage‖ as it is called, exhibits characteristics that raise safety and security concerns. Drayage carriers pull the trailers through the customs processing lanes and can spend hours idling and inching forward as they wait for their turn in the customs booth.27 This puts strain on truck engines and thus drayage carriers typically purchase older equipment. Drayage firms charge low rates and operate on very slim profit margins. Their drivers are generally the lowest paid in the industry. Once they have cleared U.S. customs,28 the drayage carrier will continue on to make final delivery if the receiver is located within the border zone or will drop the trailer for a U.S. long-haul carrier if the receiver is located beyond the zone and the Mexican carrier does not have U.S. long-haul authority. The extra trucking segment at the border, particularly at the location where the trailer is exchanged between the long-haul and drayage carrier, could create additional opportunity for infiltration by smugglers. The drayage carrier and driver are also additional entities that U.S. customs must screen for certification into the Customs Trade Partnership Against Terrorism (CTPAT) program and the Free And Secure Trade (FAST) program.

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Determinants of U.S. Truck Safety and Applicability to Mexican Carriers To better target its safety enforcement activities toward those carriers that pose a greater safety risk, the FMCSA has studied the safety performance of different categories of trucking. These studies indicate that safety performance does vary depending on the type of cargo hauled, which can be useful for evaluating safety statistics of Mexican trucks cited below. As hypothesized earlier, one study found that refrigerated trucks do have a better vehicle safety record compared to several other segments of the trucking industry.29 This study also found that U.S. drayage carriers have a relatively poor vehicle safety record, but this finding may not be applicable to Mexican drayage carriers because of an important difference in the trailer equipment used. U.S. drayage carriers predominantly haul international shipping containers at seaports or at inland rail terminals which use a separate piece of equipment—a chassis that is an I-beam frame with wheels, to pull the container over the road. The chassis are owned and maintained by the ocean carriers but their proper maintenance has been a widely recognized problem and is likely a contributing factor to the poor vehicle safety performance of U.S. drayage carriers. At the Mexican border, truck trailers (the wheels and ―container‖ are inseparable) are predominantly the equipment being pulled. Studies also indicate that drivers of refrigerated cargo are found with safety violations more often than drivers in several other categories of trucking.30 This may be because refrigerated cargo is time sensitive and hauled longer distances so drivers may be more prone to falsify hours-ofservice log books. One study found that while there was little difference between refrigerated and non-refrigerated trucking in terms of number of accidents and moving violations, drivers of refrigerated trucks had more logbook violations.31 This study found that drivers that graduated from college or had some college were 27% more likely than high school graduates to violate their logbook. The study authors reasoned that as

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education level increased, drivers became more sophisticated in manipulating the logbook or felt more confident that they could do so without being caught. While U.S. drayage carriers receive low scores for vehicle safety, their drivers generally receive higher safety scores than other segments of the trucking industry.32 Hours-of-service violations and falsifying log books are the most common violations found among U.S. truck drivers but since drayage carriers predominantly make short-haul trips, it seems logical that this violation would be less common among these drivers. Since Mexican truckers in the United States are predominantly making short-haul trips one could expect that they too would have relatively good driver safety scores, which the data in Table 1 do indicate. A congressionally mandated study of the causation of accidents in the United States involving large trucks that resulted in at least one fatality or injury found that the driver is a more critical factor than the vehicle.33 The study reports that in those incidents in which the truck was determined to be primarily responsible for the crash (as opposed to a passenger vehicle), in only about 10% of the cases was the critical factor related to a problem with the truck; in 87% of the incidents the driver was considered the critical factor in the crash.

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Mexican Truck Out-of-Service Rates Comparable to U.S. Trucks According to one indicator of safety performance, the safety of Mexican trucks has improved from a decade ago and is now comparable with U.S. trucks. ―Out-of-service‖ violations are those that are serious enough to keep the truck from continuing its journey until the violation is resolved. Common vehicle out-of-service violations include defective brakes, inoperative turn signal or lamps, a flat tire or tire leak. Common driver out-of-service violations include an hours-of-service violation, failure to keep or falsifying a log book, operating without a license or the wrong license for the type of vehicle. In 1998, the Mexican vehicle out-of-service rate was found to be 59%.34 This compares with U.S. truck vehicle outof-service rates that are typically about 22%. Mexican carriers that participated in the demonstration project had vehicle out-of-service rates of about 12% and driver out-of-service rates of about 0.25% (versus 7% for U.S. drivers). However, one would suspect these rates to be low given that Mexican project participants were assured of being at least ―checked‖ at the border while the typical U.S. trucker shipping domestically can expect only a chance of being inspected. However, recent data provided by the FMCSA and summarized by the IEP and the DOT IG indicate that other Mexican trucks are as safe as U.S. trucks and that the drivers are generally safer than U.S. drivers. For instance, another group of Mexican trucks operating in the United States are those operating within the border commercial zone. There are 7,134 Mexican carriers with 28,533 trucks that have authority to operate within the border commercial zone.35 Between FY2004 and FY2008, these Mexican trucks had vehicle out-ofservice rates that were slightly less than U.S. trucks (about 21% versus 22%) and driver outof-service rates that were significantly lower than U.S. drivers (1% versus about 7%).36 For the one year period between September 2007 and September 2008, the IEP found very similar results.37 Perhaps more significant, Mexican carriers that have been legally operating beyond the border commercial zone, outside the demonstration project, also have comparable out-of-

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service rates to U.S. carriers. These Mexican trucks obtained their long-haul authority under U.S. provisions predating NAFTA, between 1982 and 1994. Most of them have Certificates of Registration to carry certain exempt commodities between specific points (as indicated on the certificate). They are Mexican-domiciled trucking companies but majority U.S.-owned (more than 51%) and can be private carriers or for-hire carriers. In addition, a handful of Mexican-domiciled carriers are legally operating throughout the United States as a result of being grandfathered into the 1982 moratorium on Mexican and Canadian-domiciled carriers operating in the United States.38 According to the Independent Evaluation Panel, in 2008, about 861 Mexican-domiciled carriers representing 1,749 trucks were legally operating in the United States under these authorities. The safety of these trucks is on par with the safety of U.S. trucks according to the FMCSA‘s database of roadside truck inspections occurring in the United States.39 While operating in the United States from FY2004 to FY2007, these longhaul Mexican carriers had an out of service rate for the vehicle of roughly 20%, matching U.S. vehicle out of service rates during the same years. With respect to the drivers, Mexican drivers of certificated or grandfathered carriers had a much lower out-of-service rate than did U.S. drivers (about 1% versus 7%). Similar results were obtained by the Independent Evaluation Panel when they reviewed FMCSA data for a subsequent year (September 7, 2007 through September 6, 2008).40 Table 1 shows the out-of-service rates resulting from roadside inspections while operating in the United States for U.S., Mexican, and Canadian domiciled trucks over the last five years. As the figures indicate, Mexican trucks have lower driver out-of-service rates and slightly lower vehicle out-of-service rates than U.S. trucks.

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Table 1. Roadside Inspections of Trucks Operating in the United States by Country of Domicile: 2004 to 2008 Out-Of-Service Rates (OOS) Driver OOS Rates:  U.S. Driver  Mex. Driver  Can. Driver Vehicle OOS Rates:  U.S. Truck  Mex. Truck 

Can. Truck

Average # of Inspections per Year

2004

2005

2006

2007

2008

2,838,534 176,286 96,888

6.9% 1.7% 6.6%

6.9% 1.2% 6.1%

7.4% 1.3% 7.2%

7.2% 1.0% 6.3%

6.7% 1.3% 6.1%

2,089,265 161,141 56,111

23.9% 22.7% 14.2%

3.7% 2.6% 13.6%

3.3% 1.2% 13.6%

2.6% 1.8% 12.9%

2.7% 0.9% 14.1%

Source: FMCSA Motor Carrier Management Information System (MCMIS) December 19, 2008, snapshot. Notes: 2008 data as of December 19, 2008. Driver OOS rate is based on inspection levels I, II, III, and VI. Vehicle OOS rate is based on inspection levels I, II, V, and VI.

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CROSS-BORDER TRUCKING OPERATIONS: AN OVERVIEW The Scope of Cross-Border Truck Traffic

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The chart in Figure 1 shows the trend in incoming truck movements across the border with Mexico since 1985. Cross-border truck movements accelerated in the mid-1980s following Mexico‘s accession to the General Agreement on Tariffs and Trade and then again in the mid1990s under NAFTA. Trucks carry roughly 80% of the cargo, by value, across the border and trends in cross-border truck movements track closely with trends in Mexico-U.S. trade. Under NAFTA the value of trade between the two nations crossing the border by truck increased from $74 billion in 1994, to $235 billion in 2008. In the year 2007, over 4.8 million truck crossings were made from Mexico into the United States. The link between economic growth and truck crossings is important because once the two countries‘ economies rebound, the growth in cross border shipping will increase the stress on the border‘s physical infrastructure, as well as the capacity of the U.S. federal agencies that staff the Ports of Entry (POE) (e.g. U.S. Customs and Border Protection, and the Federal Motor Carrier Safety Administration, among others). The distribution of commercial traffic among the 25 POEs that handle commercial traffic is uneven. The map in Figure 2 illustrates the relative volumes of imports and exports by truck across U.S. land borders. In 2007, the top ten POEs handled 97% of the value of truck freight crossing into the United States from Mexico and the top four ports: Laredo, El Paso, and Hidalgo, Texas, and Otay Mesa, California, handled nearly 80%.41 The busiest POEs are the ones expected to experience the most growth in traffic.

Source: U.S. Customs and Border Protection. Figure 1. Incoming Truck Movements from Mexico (thousands), 1987-2007 United States Border Issues, Nova Science Publishers, Incorporated, 2009. ProQuest Ebook Central,

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Source: U.S. Department of Transportation, Research and Innovative Technology Administration, Bureau of Transportation Statistics, TransBorder Freight Data, as of March 2007. Prepared by BTS Geospatial Information Program.

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Figure 2.Top Ports forTransborder Merchandise Freight byTruck: 2006

In 2008, the top five commodities imported by value from Mexico in trucks were electrical machinery, equipment, and parts (38%); computers, industrial machinery, and parts (16%); motor vehicles and parts (8%); measuring and testing instruments (5%); and furniture and lamps (4%).42 By weight, the top five commodities imported from Mexico in trucks were edible vegetables (12%); electrical machinery, equipment, and parts (11%); computers, industrial machinery, and parts (10%); edible fruit and nuts (7%); and motor vehicles and parts (7%). Nearly all carriers of cross border freight by truck, as well as nearly all major Mexican long-haul carriers, are ―truckload‖ (TL) carriers. TL carriers haul larger shipments, averaging over 20,000 pounds, that are moved most economically in one truck directly from the origin to the destination. ―Less-than-truckload‖ (LTL) carriers specialize in smaller shipments (an average is 1,000 pounds) that can be hauled most economically by consolidating them with other shipments to the same destination city and using warehouses to consolidate/deconsolidate shipments. Trucking firms in the United States are generally either TL or LTL carriers, and most of the members of the Teamsters Union are drivers for national LTL carriers while regional LTL and TL drivers are predominantly non- union. Some see LTL as a market niche that U.S. carriers could develop in Mexico.

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Cross-Border Commercial Trucking: The Trade Flow Process The speed and impact of NAFTA implementation will be greatly influenced by the institutional and procedural environment experienced and/or created by shippers and trucking firms involved in cross-border freight shipments. The roughly 10 million truck crossings (northbound and southbound crossings combined) occurring annually at POEs along the Mexico-U.S. border undergo documentation procedures and inspections which can vary greatly but typically include the steps outlined in the following four subsections.43

Mexico-U.S. Crossings Traditional cross-border shipping by truck from the interior of Mexico to the interior of the United States can involve over 20 separate steps. These steps are described in some detail because one of the envisioned benefits of NAFTA implementation is that it will encourage the streamlining of cross border truck movements. In simplified form, the movement of truck cargo for import into the United States is as follows.  



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  

 

The Mexican carrier picks up the shipment, prepares the bill of lading, and hauls the shipment to the border region. At POEs where allowed, U.S. customs brokers may maintain small offices, where they may prepare U.S. entry documents and file them electronically. The entrymust be accompanied by evidence that sufficient bond is posted with U.S. customsto cover any potential duties, taxes, or penalties. A Mexican broker prepares Mexican export ―pedimentos‖ (a paper form similar to U.S. export declarations) after inspecting the vehicle‘s cargo. A Mexican ―validator‖ files the pedimento electronically into the MexicanCustoms Broker Association database and a validated pedimento is created torelease the shipment to Mexican customs. Mexican export duties are paid. A drayage vehicle (a short-haul truck used to shuttle truck trailers back and forthacross the border) picks up the load and hauls it to the Mexican customs facility. At the Mexican customs facility the export pedimentos are checked against theelectronic forms and then about 2% of the trucks are pulled aside for closerinspection by Mexican customs agents. The truck crosses the border, paying bridge tolls if required, and enters the U.S.customs primary inspection station. At the primary inspection station the U.S. customs inspector determinescitizenship of the driver and any passengers and then questions the driver fordeclarations of any agricultural goods, narcotics, merchandise or currency inexcess of $10,000. Once the agent verifies the paperwork and computerinformation, the vehicle is either sent on to the final U.S. customs checkpoint or isselected for secondary inspection (all hazardous materials loads are inspected andmost agricultural, food product, pharmaceutical and medical equipment shipments are sent to the agricultural inspection docks, where the Department of Agriculture inspectors and the Food and Drug Administration inspectors inspect the goods). Itis at the primary inspection station or in the queue that K9 units patrol around thevehicles and if the dog reacts to

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  

a truck the vehicle will be sent to secondaryinspection. Agents also send vehicles to secondary inspection if they see anythingsuspicious about the vehicle, driver, or paperwork. After completing primary or secondary inspection as required, the truck proceedsto the U.S. customs final check point where all the paperwork is submitted and thetruck leaves the compound. Safety inspection at POEs that have permanent safety inspection facilities usuallytake place outside the final check point. A drayage company delivers the shipment to a U.S. broker, carrier or freightforwarder‘s facility. A U.S. driver picks up the load for delivery to the interior.

U.S.-Mexico Crossings Traditional cross-border truck shipping from the interior of the United States to the interior of Mexico may also involve many separate processing steps, truck movements, and inspections. A simplified sequence of steps that are supposed to take place for the movement of cargo by truck for import into Mexico is as follows.  



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 

 

The U.S. exporter prepares bill of lading and certificate of origin for load. The U.S. carrier picks up the shipment and hauls it to the carrier‘s terminal, brokeror freight forwarder‘s facility. In some cases the forewarder is by-passed and theexporter deals directly with a Mexican customs broker. The U.S. freight forwarder/broker fills out the Shipper‘s Export Declaration andverifies the load. (The U.S. broker is liable for the accuracy of the form.) The Mexican customs broker fills out the Mexican Import Pedimentos, facilitatesthe payment of duties, and verifies the load. (The Mexican broker is legallyresponsible and liable for the contents of shipments across the border.) The brokermakes sure that the required prepayment of Mexican duties, taxes or fees has beenmade at the banking module. The Pedimentos are submitted electronically toMexican customs. Generally the Mexican broker then arranges for a Mexican ―drayage‖ company toprovide a truck or truck tractor to haul the shipment across the border. Maquiladoras, however, may use their own trucks. At U.S. customs, export loads requiring inspection (most often firearms,computers, specialized electronic equipment and hazardous materials) areinspected and registered with U.S. customs. Load is hauled across the border. At Mexican customs, paperwork is checked against the electronically filed version.For trucks whose paperwork is in order, 90% of trucks go to final checkpoint and 10% are subjected to random selection for inspection. At the final check point, all the paperwork is collected and the truck may leave theimport compound. The shipment is taken to either the Mexican broker‘s facility or to a truck corralwhere the drayage tractor is disconnected and the trailer is stored until a longhaulcarrier‘s tractor arrives to transport the shipment to the Mexican interior.

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The Maquiladora Exception A maquiladora or maquila is a manufacturing plant, located in Mexico (usually near the U.S. border) under foreign ownership, that typically has a sister plant on the U.S. side of the border supplying parts to be assembled at the Mexican plant, that are then shipped back to the U.S. Shipments to and from maquiladora facilities benefit from systems established by both U.S. and Mexican customs to speed the processing of maquiladora shipments. These changes eliminate both the U.S. and Mexican broker processing time. In effect, most maquiladora cargo is pre-cleared for crossing. Some maquiladora trucks, however, are selected for inspection. As mentioned earlier, maquiladoras may also use their own trucks and thereby eliminate any delays waiting for drayage operator pick up. Basically this means that unless they are selected for regulatory inspection or are caught in traffic congestion, most trucks operating in the maquiladora trade may cross the border with virtually no delay.44

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Hazardous Materials and Agricultural Trade The movement of hazardous materials (hazmat) is governed by stricter regulation and as per section 6901 of P.L. 110-28, Mexican truckers carrying hazmat are not permitted in the demonstration project. Advance notice is required by both U.S. and Mexican customs prior to moving hazardous material over the border. The authenticity of the licenses of all drivers whose trucks carry hazardous materials must be checked. Under NAFTA, any by-products from the use of hazardous materials must be returned to the country of origin for proper disposal. This rule has increased the movement of hazardous wastes across the border. Agricultural trade has some characteristics of traditional trade, but may be pre-cleared as in the maquiladora trade.45 It is also subject to special inspection requirements. For example, inspection for pest infestation varies depending on whether the agricultural product is considered high or low risk. Low risk products are often precleared and only one load in twenty may be randomly inspected. High pest-risk loads may all be inspected and receive pest control treatment.

The Border’s Distinctive Institutions: Drayage and Mexican Customs Brokers The predominant use of drayage for cross border hauling of freight and the role of the Mexican customs broker are distinctive institutional characteristics of the Mexico-U.S. border.

Drayage: Deadheads and Bobtails With the major exception of trucks serving the maquiladora trade, truck cargo crosses the Mexican border under a ―drayage‖ system. Under this system truck cargo is delivered to the border where a drayage company provides a truck that picks up the load on one side of the border, crosses the border, and drops it off to be picked up by a long haul domestic carrier in the destination country. The predominance of this characteristic of the Mexico-U.S. border of commercial cross border traffic leads to an unusually large percentage of ―deadhead and bobtail‖ crossings. A deadhead crossing is any truck crossing with an empty trailer and a bobtail crossing is a truck tractor crossing without a trailer. Over a third of the truck trailers

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John Frittelli

that enter the United States from Mexico are empty compared to about 15% from Canada.46 This peculiarity of the Mexican border traffic has two important results that are significant to any discussion of post-NAFTA implementation scenarios: first, drayage is a big business for the Mexican trucking firms in the border region; and second, deadheader and bobtail crossings are a major component of the traffic congestion that impedes the cross border flow of freight. Despite the arguments that fully implementing NAFTA and thereby allowing Mexican and U.S. trucks to pick up and drop off international loads anywhere in each other‘s territory will lead to a major reduction in the use of drayage services across the Mexico-U.S. border, there are reasons to expect that the drayage system will not contract quickly or as much as some have argued. Although, on its face, drayage would seem to be inefficient and costly, given extensive processing, inspection, and traffic delays, drayage actually makes more economic sense to some motor carriers than having their equipment held up for a day or more awaiting crossing. Reportedly, drayage adds roughly $100 to each cross border shipment.47 Although the overall aggregate cost that the drayage system adds to cross border trade is staggering, for many carriers $100 is much less than a carrier would lose if it has a truck and driver idle for a day or more awaiting clearance (even efficient traditional shippers can expect paperwork delays of 4 to 5 hours). Second, not only is drayage big business for Mexican carriers based in the border region, but it is also a major formative factor in the border region economy of warehouses, truck corrals, and related service industries. Local interests may support the status quo for fear that the demise of drayage would lead to job losses in the Mexican border towns and, in some U.S. border towns, from fear of being by-passed.48 Third, drayage companies often have operating agreements with Mexican customs brokers (who often have a financial interest). Some argue that this provides a strong incentive for the brokers to keep the processing times long enough to keep drayed freight competitive with single vehicle cross border trucking. Although, most observers expect NAFTA implementation would probably reduce the number of deadhead and bobtail crossings over time, few expect that they will fall to the level experienced on the Canadian border. Descriptions of the drayage system are often oversimplified. A truck dedicated to drayage can cross the border roughly two to four times each day or up to 1,000 times a year. Trucks used for drayage may also be used for domestic carriage. Following NAFTA implementation, these trucks may continue to provide drayage services. It is also likely that more of these trucks will operate more deeply, either legally or illegally, in the border states. Some believe, however, that in the post-implementation environment, the risk of getting caught will be much higher than before.

Mexican Customs Brokers The degree of control that the Mexican customs broker has on the cross border movement of cargo could have major implications for the scope and speed of impact of the implementation of NAFTA‘s trucking provisions. Customs brokers are businesses or individuals that assist in preparing the required documentation for the cross border movement of goods. Mexican customs brokers are active on both sides of the border, processing the paperwork and verifying the shipped goods for both U.S. exports to Mexico and Mexican exports to the United States. Whereas in the United States a broker or freight forwarder is only liable for the accuracy of the form, in Mexico the broker is liable for the accuracy of the paperwork and the content of the shipment. Because of this, Mexican brokers generally

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actually take a look at the cargo. This, along with the paperwork process, adds a significant amount of processing time to cross border shipments. The Binational Border Planning and Programming Study found that for frequent southbound shippers the preparation of paperwork by the Mexican broker took 4 to 5 hours and for infrequent shippers up to three days. Northbound into the United States, the Mexican broker processing time was 4 to 5 hours. If anything is wrong with the paperwork used to compile the Mexican pedimentos, it takes longer. The study found that the minimum total crossing time southbound was just over 8 hours and northbound was just over six hours.49 Thus, under the best of conditions (i.e. minimum Mexican broker processing time, no traffic delays, no narcotics inspection or customs secondary inspections, etc.), the Mexican broker‘s role was responsible for nearly half the crossing time southbound and nearly two-thirds northbound. Mexican broker processing time could therefore be sufficient to deter some carriers from engaging in cross border carriage of cargo. As mentioned earlier, Mexican brokers are often affiliated with drayage companies and most observers believe that they will resist changes that could reduce the attractiveness of cross border drayage. Some believe that the confluence of interest between these two institutions is so powerful that drayage will dominate the movement of cargo across the border for the next 15 to 20 years.50 This is a powerful alliance for the status quo. Many feel that potential U.S. entrants into cross border trucking will not be able to bypass the customs brokers, which in effect will make them opt for an alternative to direct competition with Mexican carriers. Many of the brokerage firms are family-run firms that have been in the business for generations. Both the brokers and the Mexican carriers have significant clout through their professional organizations and have heavily lobbied the Mexican government against opening up the border to U.S. trucks.

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Traffic Congestion Traffic congestion is not uncommon at commercial border crossings and can be caused by a wide variety of processing and inspection activities that occur in POEs as well as traditional causes of traffic congestion such as infrastructure limitations, excess traffic volume, and vehicle breakdowns. Different POEs have differing levels of congestion and differing reasons for its occurrence. Most POE congestion occurs during certain peak periods, usually mid afternoon. Post-September 11 security concerns, have at times increased delays for northbound traffic.51 Once economic growth picks up and traffic volumes increase, the cost of traffic delays to long-haul trucking firms could make them less willing to commit their equipment to crossing the border and make it likely that drayage will retain a significant share of cross border haulage. A case can be made, however, that for some operators, the location of the next available load will have more influence on the use of drayage than border delays or avoiding the fee.

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Mexican Trucks Illegally Operating Beyond the Border Zone Some Mexican carriers are operating illegally beyond the commercial zone. The DOT Office of the Inspector General (IG) reported that, based on FMCSA safety inspection data, Mexican trucks in significant numbers were already operating beyond the border zone. The IG expressed that he was not concerned about the trucks, the long-haul trucks that tell the truth that they‘re going to be long-haul, and have a sticker displayed on their windshield. I‘m more concerned about the trucks that come across, that are, by law, confined to the commercial zones, who just drive on. And I think it‘s important that the state police ... have the authority to say, ‗you‘re stopping in your tracks‘ and that‘s going to cause economic pain and that will be a hindrance to that type of behavior.52

The IEP found that 20 zone carriers had been inspected in 12 non-zone states from September 2007 through September 2008.53

THE OUTLOOK FOR COMMERCIAL TRUCKING UNDER NAFTA

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Most observers agree that the full impact of NAFTA implementation will take time to manifest itself. There is considerable agreement on the probable short-term impact as well as a general expectation that the resulting changes in cross-border commercial trucking will be gradual. In the longer term, stake holders interested in the opening of the Mexican-U.S. border to long haul trucking are less willing to make predictions about the impact of implementation and are more tentative, many preferring to take a wait and see attitude before committing to a change in business practices.

The Short Term: Expectations and Limitations Once it happens, nearly all observers expect that the opening of the Mexico-U.S. border will begin with a whimper rather than a bang.54 Few expect a major surge of either Mexican long-haul trucking into the United States or U.S. long-haul trucks into Mexico during the first couple of years of implementation. Because of the safety concerns about Mexican trucks, most of the discussions have focused on the likelihood that Mexican trucks would begin operating deep into the United States. Much less has been written or said about the likelihood of U.S. domiciled trucking firms operating in Mexico, however.

The Short Term Prospects for Mexican Long-Haul Trucking in the United States There are a number of reasons that few Mexican carriers are expected to operate beyond the commercial zone in the short term, if the border were to be reopened for long-haul deliveries. Mexican trucking firms will face a number of competitive disadvantages when carrying international cargo into the U.S. interior.55 These disadvantages include:

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 





25

Beyond the commercial zone, few Mexican-domiciled carriers have developed business relationships that could provide them with the return loads needed tomake operating deep in the United States profitable; Border delays push up costs and discourage Mexican long-haul carriers fromcommitting their vehicles to international trade with the United States. Reportedly northbound delays at the border have increased significantly since the September11 attacks;56 Initially, the cost of insurance for Mexican carriers operating to the U.S. interiorwill be set at the highest U.S. insurance risk level until the Mexican firms have atrack record for operating safely beyond the commercial zone. As time passes therates would likely be adjusted to reflect experience; The English language requirement will limit the number of federally licensed Mexican truck drivers that can operate legally in the United States; Mexican carriers have less access to financial resources and pay much higherinterest rates than U.S.-based companies. In addition, new trucks cost more inMexico than in the United States;57 One unusual possibility is that some Mexican carriers are concerned that some oftheir drivers may be tempted to abandon their trucks deep inside the United Statesand seek work in the United States. The presence of a more active safety and regulatory enforcement effort in the postimplementation environment will discourage some long-haul Mexican motorcarriers from entering the United States.

Mexican carriers, on the other hand, do have some advantages that could eventually give them a competitive edge in certain U.S. markets. These advantages include:

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 

Lower labor costs—although there is disagreement on the size of the wageadvantage, it is probable that federally licensed Mexican drivers‘ wages are lessthan half that of U.S. drivers and may be as low as one-third of U.S. drivers‘wages;58 Mexican carriers, and in particular Mexican drivers, currently dominate crossborder trade within the border zone. Some trucking companies in Mexico thatprovide drayage service also handle domestic carriage. These firms could test the market by hauling cargo to border cities close enough to the border for a day trip; Mexican carriers, in press reports, have complained that in Mexico excess truckingcapacity has forced down rates for domestic carriage, this could make haulagebeyond the commercial zone attractive to some Mexican firms. A decline indrayage could, for example, have the effect of freeing up even more Mexicancapacity. Mexican drivers know the border region well and some have knowledge of the U.S. road system beyond the commercial zones;59 Some of the disadvantages faced by Mexican trucking firms (i.e., insurance, stateregistration fees, lack of back-hauls) will become less constraining as these firms establish an operating history or possibly lease their services to U.S. firms and/orestablish interline partnerships.

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The Short Term Prospects for U.S. Long-Haul Trucking in Mexico The likelihood of significant numbers of U.S. trucking firms directly providing long-haul international trucking services deep into Mexico is very low. As of this writing, the Mexican government has not begun accepting applications from U.S. trucking companies for operating authority in Mexico. Once the Mexican government accepts and processes applications for operating authority, some U.S. firms will apply, but the number is expected to be small. The 10 U.S. trucking firms contacted by CRS all stated that they had no plans to use their U.S.based trucks or U.S.-based drivers to haul international cargo into the Mexican interior soon. U.S. firms have, however, been investing in Mexican trucking firms that specialize in international cargo and many observers expect U.S. firms to expand their business in the Mexican market through Mexican subsidiaries or partners. U.S. firms cite a variety of reasons for not being interested in using their own drivers and equipment to provide long-haul trucking services to the Mexican interior. Once a U.S. truck and driver cross the border they are at a labor cost disadvantage relative to Mexican firms. U.S. equipment is built for U.S. road conditions and could probably only operate on the best Mexican roads (many of which have significant tolls) without risking damage. Most U.S. drivers, especially those not based beyond the border region, do not speak Spanish. U.S. firms do not want to risk having their equipment and drivers delayed by paperwork and inspection activities or by the congestion that occurs as part of the cross border flow of goods. U.S. carriers also believe that Mexico is a dangerous place to operate and hesitate to place their drivers, equipment, and cargo at risk.60 In addition, even if the Mexican government begins accepting applications from U.S. carriers for operating authority in Mexico, there is a great deal of uncertainty as to how soon NAFTA implementation will take place in a meaningful way on the Mexican side of the border. The Short Term Outlook Gradualism will probably be the predominant characteristic for at least the first couple of years of NAFTA implementation. It could be 2005 before Mexico agrees to terms for the onsite inspections of Mexican carriers required under U.S. law. Once this occurs, Mexican firms that are certified to operate beyond the commercial zone will likely begin testing the waters for deliveries to destinations close enough to the border that allow them to have at least a prospect of breaking even without having a prearranged back-haul. Where back-hauls can be arranged, Mexican carriers will operate farther into the United States, but most observers expect the vast majority of truck loads will be to destinations in the border states. As long as there are significant delays at the border, however, the majority of truck freight crossing the border into the United States will continue to be brought in by drayage operators. Despite this short term gradualism, the limited activity is important because it will be a time of testing of different business patterns or models. One feature of this period may be the evolution of cooperative agreements between Mexican and U.S. haulers, which could have a major impact in the long-term outlook for international trucking in the United States and Mexico.61

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The Long Term: Business Structure and Competition

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In the long run, the outlook for international trucking across the border is less a function of regulation than of business practices and the economics of international trucking. Within this context there are a number of factors that will influence the shape and scope of NAFTA implementation. Most discussions of the likelihood or extent of Mexican or U.S. trucks entering the long-haul trucking market within each other‘s borders focus on the difficulties that would be faced by a Mexican trucking firm going it alone in the U.S. market or a U.S. firm going it alone in the Mexican market. Only a few companies on either side of the border are expected to provide direct trucking services deep into the other country, but many are expected to operate cross-border through a subsidiary or parent corporation or in cooperation with an affiliate business on the other side of the border. Virtually all observers agree that Mexican drivers will continue to dominate the cross-border carriage of cargo by truck for some time.62 The one area, however, where Mexican trucking companies fear direct competition with U.S.-based companies is for the trucking serving the maquiladora trade concentrated near the border. There continues to be disagreement on how common it will be for Mexican drivers to operate deep within the United States in the long term. It is important to remember that the main factor in the growth of truck crossings has been the growth in trade, which determines the amount of freight that must be moved across the border.63 Consequently, it is doubtful that eventual implementation of the trucking provisions of NAFTA, by itself, will lead to a major increase of the amount of freight shipped. It will, however, have an impact on how and by whom the freight is moved across the border.

The Cross-Border Business Paradigm Despite having been banned for many years from delivering cargo in each other‘s countries beyond the border zones, U.S. and Mexican trucking firms have offered ―seamless delivery‖ throughout each other‘s territory to their customers through working arrangements with counterparts across the border.64 These arrangements are commonly referred to as partnerships, but are generally interlining or interchange agreements. Interline agreements provide for joint line transborder shipments by transloading freight at the border between U.S. and Mexican trucking firms. Interchange agreement generally has the U.S. firm also providing the loaded trailer for delivery to the final destination. Prior to NAFTA, U.S. firms could not invest in Mexican trucking firms and Mexican firms were not allowed to hold a controlling interest in U.S. trucking firms. NAFTA phased in the allowable ownership for U.S. investors in Mexican trucking companies: 49% ownership after December 17, 1995, 51% ownership on January 1, 2001, and 100% ownership on January 1, 2004.65 Major U.S. trucking firms doing business in Mexico began investing in Mexican trucking firms beginning in the mid-1990s, often in effect creating subsidiary firms in Mexico. The investment link is significant in that the profits of the U.S. parent firm are affected by the profits of its Mexican subsidiary. U.S. investment in Mexican motor carriers is limited to firms that carry international loads only. This significantly limits the number of existing Mexican carriers that are subject to controlling interest investment by U.S. investors. With 100% ownership now allowed it should be even easier for U.S. firms to set up new Mexican subsidiaries dedicated to cross-border trucking. Mexican investors were to be allowed to invest up to 100% in U.S. trucking firms providing international freight

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services beginning December 18, 1995; however, it wasn‘t until June 2001 that U.S.domiciled Mexican-owned firms were allowed to obtain operating authority to provide truck services for the transport of international cargo between points in the United States.66 Within the context of NAFTA implementation, cross-border investment is expected to alter the cross-border trucking business paradigm for some companies and allow U.S. firms to take advantage of their Mexican subsidiary or affiliate partner‘s labor cost advantage and knowledge of the Mexican market. At the same time the new paradigm will help their Mexican subsidiaries or partners navigate the complexity of operating beyond the border zones in the United States. In short, the strengthened business paradigm will reduce some of the non-labor disadvantages faced by Mexican firms operating in the United States. Mexican firms that are subsidiaries of large U.S. trucking firms may be able to benefit from their parent firm‘s ability to assist them with navigating U.S. state registration fee requirements, acquiring insurance at reasonable rates, getting loans at reasonable rates, and arranging for back-haul loads for return trips. The U.S. firm benefits from the potential cost savings that the subsidiary provides for its international trucking business. Over time, however, the wages of Mexican drivers would be expected to rise relative to U.S. truck drivers. Celadon Group, Inc., which claims to be the leading truckload carrier to and from Mexico, has briefly outlined its post-implementation plans, in its September 2002 10K filing:

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The opening of the border... will for the first time, permit Mexican drivers to move loads without restrictions between Mexico and points in the United States. We have extensive experience with the management of drivers in Mexico, through our ownership of Jaguar, our Mexico City-based subsidiary. We expect to take advantage of the border opening by utilizing lower cost drivers on shipments to and from Mexico.67

If and when the NAFTA trucking provisions take effect, Celadon‘s business model may succeed in giving it a cost advantage and its competitors will have to adjust. Such an adjustment, however, might put a downward pressure on the wages of U.S. drivers vis-à-vis their Mexican counterparts. As mentioned earlier, an area where Mexican companies have expressed concern over possible direct competition with U.S. carriers is in the provision of trucking services to the maquiladoras. The location of their factories near the border and the expedited processing of maquiladora freight at the border might attract U.S. competition, especially from companies headquartered near the border. An alternate business plan, reportedly raised by some Mexican carriers as a possibility, would be to lease their equipment and drivers to U.S. firms, who it is hoped could then deal with insurance and regulatory requirements, and provide knowledge of the market on the U.S. side of the border. Another business plan being considered by some Mexican firms that would require less dependence on a U.S. partner would focus on long haul delivery direct to the warehouse districts in or near the border zones on the U.S. side and to direct long-haul delivery back into Mexico, thus eliminating the drayage hauler. Over time, these carriers might gradually expand service to border state inland ports such as San Antonio, Texas.

The Low Cost Producer: Time and Distance Is Money Two of the basic precepts of making money in trucking are minimizing the time that trucks and drivers are idle and reducing the miles that empty trailers are hauled or tractors are United States Border Issues, Nova Science Publishers, Incorporated, 2009. ProQuest Ebook Central,

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driven without a load. For an independent Mexican carrier operating in the United States, its significant cost advantage is limited to its lower driver costs. Its main disadvantages are the aforementioned probable lack of a back-haul, higher insurance rates, increased inspection costs, higher state registration fees, and more expensive financing of its equipment. Over the long run, the effect of these disadvantages will probably be reduced but will not go away entirely. Mexican firms that are closely affiliated with, or are subsidiaries of, major U.S. firms will probably get help from their U.S. partner or parent firm to assist them in reducing their non-labor costs. In either case, the key to profitability may be that the labor cost differential is enough to overcome the cost of being delayed at the border and/or returning without a backhaul.

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The Wage Differential Estimates of the wage differential vary substantially for a federally licensed Mexican truck driver engaged in international carriage of cargo to the United States versus the cost of a U.S. driver, but they generally range from one third to one half the cost of the U.S. driver.68 Using the 2007 Bureau of Labor Statistics figure for the median hourly truck driver wage of $17.41, roughly three times the U.S. minimum wage, and the estimates that Mexican drivers would cost one third to one half of a U.S. driver, the cost savings for using a Mexican driver for long-haul carriage into the U.S. would range from $7.63 to $10.17 per hour.69 Estimates of the differential on an earnings-per-mile basis pegged Mexican driver earnings in one case at 13 cents per mile versus 31 to 40 cents for a U.S. driver and in another case 16 cents per mile versus 32 cents per mile. With overall truck operating expenses reportedly ranging from $1.10 to $1.70 per mile, the majority of the labor cost advantage is quickly lost on any job without a revenue earning back-haul.70 The labor cost benefit would probably be lost within the first third of a return run to the border without a back-haul load.71 Most observers believe that the border states will be the main zone of competition, with only the Mexican companies with connections for back-haul loads operating beyond the border states with any regularity. Cabotage: Legal and Illegal One way Mexican trucking firms could avoid hauling an empty trailer all the way back to Mexico would be to use the tractor to pick up and make a domestic U.S. delivery on the way back to Mexico. In the language of the trucking industry, such domestic movements are referred to as cabotage. NAFTA does not allow Mexican trucks to engage in domestic trucking in the United States or vice versa. U.S. customs has made an exception for Canadian vehicles, which may also be allowed for Mexican carriers.72 The exception is for a domestic movement of merchandise that is ―incidental‖ (defined as in the ―general direction of an export move or as part of the return movement [of trucks] to their base country‖). Cabotage is a contentious side issue in NAFTA implementation regarding Mexico. Opponents of implementation see the ―incidental‖ exception as an enormous loophole on the prohibition against foreign carriers competing against U.S. truckers in the domestic market. The ―incidental‖ exception is part of a much larger concern. Trucking unions and truck owner-operators are concerned that once Mexican trucks are commonly operating deep within the United States, Mexican carriers will be tempted to routinely engage in illegal cabotage in general and, in doing so, will take jobs away from U.S. drivers and businesses.73 The installment of GPS devices on demonstration project participants was, in part, meant to

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address this concern. Another concern is that Mexican trucking firms will lease their trucks and drivers to U.S. partners or parent companies who might arrange for a work visa for the leased driver and then provide both international trucking services as well as cabotage within the United States.74

The Distinctive Institutions As mentioned earlier, there is a common view that the Mexican customs brokers and drayage companies will do what they can to maintain the status quo. There are reasons to believe, however, that resistance is overstated. To begin with, it is not only the drayage operators that have developed working relationships with the Mexican customs brokers over the years but also the long-haul companies that will be providing single-truck service to the U.S. side of the border. A second reason is that in the long run, Mexican brokers‘ profits are determined by the amount of freight they process. This will eventually provide them with an incentive to work with the long-haul carriers and also to streamline and automate their procedures. Although it is likely that the share of cargo hauled by the drayage operators will decline over the next ten years, it is unlikely that drayage will decline to the 15% share drayed across the Canadian border. The quality of trucks used for drayage reportedly is improving, in part, because of the increased safety and environmental scrutiny they will face at the border.75 As the drayage share declines, some of these operators may change their business strategy and seek more business in local haulage in Mexico and some will also probably try operating beyond the border zones in the United States. This is not to say that these institutions will not resist change but just that estimates that nothing will change for ten to fifteen years can probably be viewed as overly conservative. Should the two countries‘ economies grow more rapidly, the resulting increase in trade will probably provide plenty of business for both long haul and for drayage operators. The irony for the drayage companies is that the threat to their dominance of cross-border trucking is going to come from Mexican long-haul carriers, not from U.S. trucks.76 Also, regular shippers have a model for expedited cross border trucking in the processing of the trucks used in the maquiladora trade. Mexican trucking companies that begin to regularly serve the warehouse districts and nearby cities in the border states will be especially attracted to the maquiladora model.

Caveat Cross-border carriage of goods is a complicated activity with many elements that could change the outlook discussed above. Anything that significantly adds time to the paperwork process on either side of the border or to the duration and frequency of inspection of cargo could significantly delay the impact of NAFTA implementation. Heightened concerns about security, drug smuggling, safety, pollution, illegal immigration and terrorism, could lead to more intensive inspection of goods and driver documentation. This could increase border crossing delays and perhaps reduce the Mexican labor cost advantage and limit the impact of implementation.

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CONGRESSIONAL ISSUES The Obama Administration has stated that it intends to introduce a revamped demonstration program and thus an issue for Congress will be reviewing that new plan. The DOT IG and the IEP noted some areas where modifications could be made to the Bush Administration‘s demonstration project. As noted above, during the first year of the demonstration project (September 6, 2007 through September 5, 2008) only 29 Mexican carriers were admitted into the program while the original intent was to have 100 carriers participate. Both the IEP and DOT IG have suggested that more Mexican firms would participate if the FMCSA could be more selective in checking at the border and pre-inspecting on-site in Mexico only those trucks that intend to haul beyond the commercial zone, rather than checking and inspecting every truck from a participant carrier, including those intended only for commercial zone use. One Mexican carrier withdrew from the program because it found the checking process was creating too much delay. This carrier did not obtain any business that required it to operate beyond the commercial zone during the time it participated in the demonstration project. Nevertheless, its drivers were being checked at every crossing even though they would be making deliveries within the commercial zone because the carrier was flagged as a demonstration project participant.77 The company‘s trucks were inspected much less frequently before it entered the program. Since many of the Mexican carriers seeking long-haul authority also have much business within the commercial zone, a more targeted inspection program by the FMCSA could ease Mexican carriers‘ concerns about jeopardizing their commercial zone business. The IEP also reported that several Mexican carriers did not join the project because their older rigs used only for commercial zone drayage would also need to be inspected along with their newer rigs used for long-haul movements.78 The rationale of eliminating the truck drayage segment at the border, and of NAFTA in general, is to reduce the cost of trade between the two countries, thus raising each nation‘s economic welfare. However, the cost to federal taxpayers of ensuring Mexican truck safety, estimated by the U.S. DOT to be over $500 million as of March 2008, appears to be disproportionate to the amount of dollars saved thus far by U.S. importers or exporters that have been able to utilize long-haul trucking authority. Beyond the hindrances to greater utilization of long-haul operations associated with the demonstration project, delays associated with customs processing are significant and a long-term obstacle to efficient trucking across the border. Any accumulated savings in trucking costs enjoyed by shippers therefore should be weighed against the public cost of funding the safety inspection regime for Mexican long-haul carriers. If the role of Mexican customs brokers and drayage operators becomes an impediment to the efficient flow of freight across the border, it would raise the issue of whether these particular institutions have a role in preventing U.S. firms from operating directly in Mexico. If after implementation, these institutions continue to have a degree of control over cross border trucking that is deemed detrimental to U.S. trucking firms, some may view them as a non-tariff trade barrier to U.S. trucking services.79 Another issue is the number of trucks that have operating authority restricted to the border zones and that operate illegally beyond those zones. This includes concerns about the fate of Mexican drayage trucks after implementation. If implementation reduces the demand

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for drayage services, some operators may try to use their drayage equipment to haul loads to destinations beyond the border zone. The drayage trucks would not simply disappear and some would undoubtedly risk going beyond the commercial zones. The case can be made, however, that the combination of increased enforcement (the FMCSA alone has 252 personnel assigned to the Mexican border and state police and safety inspectors will also be on the look-out for Mexican trucks operating beyond their authority) and penalties (placing a Mexican truck, far from the border, out of service is a very expensive proposition for a Mexican carrier; in addition, fines can be imposed) should reduce this kind of cheating.80 However, it will be worth watching the numbers of Mexican-domiciled trucks that are caught operating beyond their authority. The leasing of Mexican trucks and drivers by U.S. firms may become a major implementation issue. The ban on using leases to circumvent the prohibition on Mexican trucks from operating beyond the border zones ends with NAFTA implementation. Leasing may become an important element in the post-implementation business environment. If a U.S. firm also arranges for work visas for leased Mexican drivers, it could make them available for more cabotage loads and could have Mexican drivers competing more often against U.S. drivers in the United States. Should this happen, Congress may want to revisit the leasing issue.

End Notes

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1

The commercial zone is defined at 49 CFR 372, subpart B. A map of the zones and further details are available at http://ai.fmcsa.dot.gov/International/border.asp?redirect=commzone.asp. 2 Roadside inspectors target trucks that appear to have a deficiency, so out-of-service rates would be higher than if trucks were randomly chosen for a roadside inspection. U.S. General Accounting Office (now the U.S. Government Accountability Office). Commercial Trucking: Safety Concerns About Mexican Trucking Remain. GAO/RECD 97-68. Washington, GAO, 1997. p. 1-4. See also U.S. DOT, Office of the Inspector General, Motor Carrier Safety at the U.S.-Mexico Border, Report Number: MH-2001-096, Washington, 2001. The IG found that the Mexican out-of-service rate had improved to 37% for FY2000. 3 North American Free Trade Agreement Arbitral Panel Established Pursuant to Chapter Twenty in the Matter of Cross-Border Trucking Services; Final Report of the Panel. Washington, NAFTA Secretariat, 2001. p. 81-82. Available at http://www.nafta-sec-alena.org/app/DocRepository/1/Dispute/english/NAFTA_ Chapter_20/USA/ub98010e.pdf. 4 U.S. Federal Motor Carrier Safety Administration final rules for implementation of the NAFTA trucking provisions may be found at http://www.fmcsa.dot.gov/rulesregs/mexican/Part_365.pdf; http://www.fmcsa.dot.gov/rulesregs/fmcsr/ final/Safety_certification.pdf; and http://www.fmcsa.dot. gov/rulesregs/mexican/Parts_368_and_387.pdf. 5 Mexican carriers, planning only to operate in the commercial zone along the border, had to apply by October 20, 2003, for provisional Certificates of Registration. FMCSA made efforts to publicize this deadline to new and existing Mexican commercial zone certificated carriers. The provisional Certificate cannot be made permanent for at least 18 months, until the carrier has passed a safety audit. 6 U.S. Department of Transportation. U.S. Transportation Department implements NAFTA Provisions for Mexican Trucks, Buses. Available at http://www.fmcsa.dot.gov/contactus/press/2002/112702.htm. 7 See U.S. Federal Motor Carrier Safety Administration. NAFTA Environmental Analysis. Available at http://www.fmcsa.dot.gov/naftaeis/; U.S. Department of Justice. Office of the Solicitor General. United StatesDepartment of Transportation, et al., Petitioners v. Public Citizen, et al., on Petition for a Writ of Certiorari to theUnited States Court of Appeals for the Ninth Circuit. Docket no. 03-358. Washington, the Department. 27 p. Available at http://www.usdoj.gov/osg/briefs/2003/2pet/7pet/2003-0358.pet.aa.pdf; See also DOJ Supreme Court Appeal inMexico Truck Case Puzzles Activists. INSIDE Cal/EPA. Sept. 12, 2003. p. 14. 8 The Supreme Court‘s decision reversing the 9th Circuit Court‘s decision is available at http://supct.law.cornell.edu/supct/pdf/03-358P.ZO. 9 72 FR 23883. 10 U.S. DOT Press Release, DOT 43-07, April 30, 2007.

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See 72 FR 31877-31894, June 8, 2007 for the request for public comment. See 72 FR 46263-46289, August 17, 2007. 13 Mexican-based carriers are not allowed to transport cargo from a U.S. origin to a U.S. destination, i.e. engage in U.S. domestic transport of cargo. 14 The FMCSA used the word ―checking‖ to describe this process because it is different than the process associatedwith an ―inspection‖ which is defined in regulations. 15 Written statement of Mary E. Peters, Secretary of Transportation, before the Senate Committee on Commerce,Science, and Transportation, March 11, 2008. 16 DOT IG, Report # MH-2008-040. 17 Independent Evaluation Panel (IEP) Report to the U.S. Secretary of Transportation, U.S.- Mexico CrossBorderTrucking Demonstration Project, October 31, 2008. The report is available at http://www.dot.gov/affairs/PanelReport.pdf. 18 For further information on the U.S.-Mexico trade relationship, see CRS Report RL32934, U.S.-Mexico Economic Relations: Trends, Issues, and Implications, by M. Angeles Villarreal. 19 The White House, Office of the Press Secretary, Press Briefing by Press Secretary Robert Gibbs, March 16, 2009. See also, Lisa Caruso, ―Jump Starting Mexico‘s Trucks,‖ The National Journal, March 28, 2009; and ―LaHood To Share Mexico Trucking Proposal With Congress Soon,‖ Inside U.S. Trade, May 1, 2009. 20 73 FR 45797, August 6, 2008. 21 IEP Report to the U.S. Secretary of Transportation, U.S.-Mexico Cross-Border Trucking Demonstration Project,October 31, 2008, p. 13. 22 IEP report, p. xvii. 23 U.S. Department of Transportation, Federal Highway Administration, Office of Freight Management and Operations,Freight Facts and Figures 2007, Table 3-6, p. 25. 24 U.S. Department of Transportation, Bureau of Transportation Statistics and U.S. Census Bureau, 1997 CommodityFlow Survey (Washington, DC, 1999), Table 3, pp. 11-13. Includes for hire trucks and private trucks. 25 DOT, BTS North America TransBorder Freight Data. Vehicles account for 75% of the value of cargo imported byrailroads. 26 Based on 2008 data. DOT, BTS, North America TransBorder Freight Data. 27 Drayage carriers are also found at U.S. seaports for the same reason; long wait times to be processed through the port‘s entry gate. 28 In this chapter, ―U.S. customs‖ refers to U.S. Customs and Border Protection. 29 Thomas M. Corsi, Marius Stefan, ―Motor Carrier Safety Performance Profile,‖ prepared for FMCSA, February 2004. Available at http://ai.fmcsa.dot.gov/CarrierResearchResults/PDFs/MCSafPerfProfile.pdf. 30 Thomas M. Corsi, Marius Stefan, ―Motor Carrier Safety Performance Profile,‖ prepared for FMCSA, February 2004; and William C. Horrace, Thomas P. Keane, ―Ranking and Selection of Motor Carrier Safety Performance by Segment,‖ August 2003. Available at http://www.horrace.com/AAP%20 Horrace%20Keane%20August%202003.pdf. 31 Kristen Monaco, Emily Williams, ―Assessing the Determinants of Safety in the Trucking Industry,‖ Journal of Transportation and Statistics, April 2000. 32 Thomas M. Corsi, Marius Stefan, ―Motor Carrier Safety Performance Profile,‖ prepared for FMCSA, February 2004; and William C. Horrace, Thomas P. Keane, ―Ranking and Selection of Motor Carrier Safety Performance by Segment,‖ August 2003. Available at http://www.horrace.com/AAP% 20Horrace%20Keane%20August%202003.pdf. 33 U.S. DOT, FMCSA, Report to Congress on the Large Truck Crash Causation Study, November 2005. Available athttp://www.ai.volpe.dot.gov/ltccs/data/documents/reportcongress_11_05.pdf. 34 Written statement of Mary E. Peters, Secretary of Transportation, before the Senate Committee on Commerce,Science, and Transportation, March 11, 2008, p. 5. 35 IEP report, p. 52. 36 DOT IG, Report # MH-2009-034, pp. 12-13. 37 IEP report, p. xiii. 38 The moratorium was imposed by section 6 of The Bus Regulatory Reform Act of 1982. For a legislative history of these two long-haul authorities, see Appendix D of the IEP report, pp. 71-72. 39 DOT, IG, Status Report on NAFTA Cross-border Trucking Demonstration Project, Report No. MH-2009-034, February 6, 2009, pp. 12-13. 40 Independent Evaluation Panel Report, U.S.-Mexico Cross-Border Trucking Demonstration Project, October 31, 2008, p. 19. 41 U.S. DOT, BTS, North American Transborder Freight Data. 42 DOT, BTS, North American Transborder Freight Data. 43 A detailed account of the steps of cross-border trade flows by truck can be found in the Binational Border Transportation and Programming Study, Task 3.1: Description of Commercial Motor Vehicle Trade Flow 12

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Process— Final Report, May 8, 1996. Washington, U.S. Department of Transportation and Secretaria de Comunicaciones y Transportes. 1998. [CD ROM] 44 Ibid., p. 4-6. 45 Traditional trade is defined in the Binational Study as non-maquiladora, non-agricultural, or non-hazardous materials trade. 46 U.S. Customs data; some believe that these data undercount the number of Canadian border empty crossings. However, even using other sources, the Mexican rate is twice the Canadian rate. 47 Giermanski, James R. A Fresh Look at NAFTA: What‘s Really Happened? Logistics Management and Distribution Report, vol. 9, Sept. 1, 2002, 43pp. 48 Yardley, Jim. Truck-Choked Border City Fears Being Bypassed. New York Times, Mar. 15, 2001, pp. A1, A20. 49 Binational Study. Task 3.1. p. 3-6. 50 Whitten, Daniel L. ―Mexican Freight Handlers Warily Eye U.S. Competition: Carriers, Brokers Seek to Protect Paperwork-Preparation fee, Long-Time Ties to Shippers,‖ Transport Topics, June 3, 2002, p. 13. 51 Karaim, Reed. ―On Both Sides Now, the Costly Consequences of Vigilance,‖ Washington Post, March 10, 2002, p. B3. See also GAO, NAFTA: Coordinated Operational Plan Needed to Ensure Mexican Trucks’ Compliance With U.S. Standards. GAO-02-238, Dec. 2001. p. 8. 52 U.S. Senate. Joint Hearing of the Surface Transportation and Merchant Marine Subcommittee of the Senate Commerce, Science, and Transportation Committee and the Transportation Subcommittee of the Senate Appropriations Committee. Hearing held June 27, 2002. As reported by the Federal News Service, Inc. The distance of the limit of the border zone varies depending on the size of the municipality involved and can extend substantially farther into the United States than the often quoted 3 to 20 miles. See 49 U.S.C. Sec. 372.241. This variability of border zone limits could be an enforcement issue after implementation. 53 IEP report, p. 54. 54 Delgado, Claudia Patricia. Prozzi, Jolanda. Harrison, Robert. Opening the Southern Border to Mexican Trucks Will Have a Negative Impact on the US Transportation System—Where Is the Evidence? Austin, TX, University of Texas at Austin. 18 p. See also Whitten, Mexican Freight Haulers Warily Eye U.S. Competition, p. 13. 55 For the best description of difficulties faced by Mexican carriers see, General Accounting Office. North American Free Trade Agreement: Coordinated Operational Plan Needed to Ensure Mexican trucks’ Compliance With U.S. Standards. Report no. GAO-02-238, December 2001. pp. 2-3, 7-12. 56 Ibid. GAO reported that ―Mexican and private sector officials stated that delays in crossing the border have increased since the terrorist attacks of September 11, 2001.‖ 57 Whitten, p. 13 58 See U.S. Bureau of Labor Statistics. 2007 National Occupational Employment and Wage Estimates: 53-3032 Truck Drivers, Heavy and Tractor-Trailer. At http://www.bls.gov/oes/2007/may/oes533032.htm. The median wage is estimated at $17.41 per hour for a tractor trailer driver in the U.S. Benton, James C. ―Transportation Bill Set to Clear as Bush Wins Key Provision Opening U.S. to Mexican Trucks,‖ CQ Weekly, Dec. 1, 2001, p. 2846. Quotes Michael Belzer of Wayne State University‘s estimate that Mexican drivers earn two thirds less than U.S. drivers. An Associated Press Article, ―New Policy Troubles U.S., Mexican Truckers, Nov. 29, 2002, estimates that U.S. truckers on average earn 32 cents per mile and their Mexican counterparts earn about half that amount. Delgado, Perozzi, Harrison‘s survey of Mexican trucking firms found that long-haul drivers incomes varied greatly—from $800 to $1,600 per month. 59 U.S. Department of Transportation. Office of the Inspector General. Audit Report: Mexico-Domiciled Motor Carriers. Report no. TR-2000-013. Washington, DOT, 1999. 25 p. 60 Cargo theft and especially fear of hijacking and the related endangerment of their drivers and potential loss of equipment were mentioned by U.S. trucking firms as a major reason for not operating in Mexico. A 1999 U.S. Department of State report, Trucking Services:[Mexico], by Javier Flores at http://www.tradeport.org/ts /countries/ mexico/isa/isar0029.html, stated that the ―lack of security on Mexican highways is, by far, the largest problem affecting this industry. The soaring cost of insurance is the result ... as a result, transportation companies and their customers lose business opportunities.‖ The report also discusses other difficulties faced by U.S. trucking service providers who are interested in operating in Mexico. 61 See Delgado, et al. 62 Some U.S. firms, headquartered in the border region, with their lower than the U.S. average driver wages and Spanish speaking workforce, may try to send their drivers and trucks into Mexico, but are not expected to gain much of a market share. It is likely that, once the Mexican government begins accepting applications, some U.S. firms will apply for operating authority simply for the flexibility of being able to send some of their drivers and trucks into Mexico if required. 63 See Appendix I in, General Accounting Office. U.S.-Mexico Border: Better Planning, Coordination Needed to Handle Growing Commercial Traffic. Report no. GAO/NSIAD. Washington, GAO, 2000, pp. 42-43. 64 Office of International Affairs, American Trucking Association. South of the Border: U.S. Trucking in Mexico. Washington, 1992. pp. 17-19.

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North American Free Trade Agreement. Annex I, Schedule of Mexico. In U.S. Congress. North American Free Trade Agreement, Texts of Agreement, Implementing Bill, Statement of Administrative Action, and Required Supporting Statements. U.S. House of Representatives Document 103-159, vol. 1, p. 1590. 66 Bush, George W. Memorandum for the Secretary of Transportation: Determination Under the Interstate Commerce Commission Termination Act of 1995. Washington, White House. June 2001. 67 Celadon Group, Inc. Form 10-K, Annual Report Pursuant to Section 13 or 15 (d) of Securities Exchange Act of 1934. Washington, U.S. Security and Exchange Commission. (September 2002) p. 3. 68 See U.S. Bureau of Labor Statistics. 2007 National Occupational Employment and Wage Estimates: 53-3032 Truck Drivers, Heavy and Tractor-Trailer. Internet address http://www.bls.gov/oes/2007/may/oes533032.htm. Schulz, John. A Race to the Bottom. Traffic World, Mar. 4, 2002, p. 22. Quotes Owner-Operator Independent Drivers Association (OOIDA) estimates that Mexican drivers earn 13 cents per mile versus U.S. truckload drivers earning 31 cents to 40 cents. Benton, James C. Transportation Bill Set to Clear as Bush Wins Key Provision Opening U.S. to Mexican Trucks. CQ Weekly, Dec. 1, 2001, p. 2846. Quotes Michael Belzer of Wayne State University estimate that Mexican drivers earn two thirds less than U.S. drivers. An Associated Press Article, New Policy Troubles U.S., Mexican Truckers, Nov. 29, 2002, estimates that U.S. truckers on average earn 32cents per mile and their Mexican counterparts earn about half that amount. 69 Some believe Mexican trucking firms would be under pressure to pay their drivers well for fear that some of their drivers might abandon their equipment deep in the United States and seek better paying work in the United States. 70 Case, Brendan M. ―Mexican Rigs Get Go-Ahead; Bush Gives OK to Open Up U.S. Roads.‖ Dallas Morning News, Nov. 28, 2002, p. 1D. 71 Getting information on costs can be difficult due to the proprietary nature of business information. However, using the cost-per-mile estimate of $1.10 to $1.70, and the estimate that federally licenced Mexican drivers earn one third to one half what U.S. truckload drivers earn can provide a rough estimate that the labor cost savings are lost in the first third of a deadhead return. Near the border this does not mean a great deal, but the farther into the United States a Mexican truck travels, the more important a back-haul or cabotage load becomes to the profitability of the operation. 72 See 19 CFR 123.14. 73 The Department of Transportation Inspector General reported in 1999 that some Mexican trucks were operating beyond the border zones and to a lesser extent beyond the border states, see Mexico-Domiciled Motor Carriers [Operating Beyond the Border Zone] Washington, Office of the Inspector General. Nov. 4, 1999. Report no. TR2000 013. 74 The Motor Carrier Safety Improvement Act of 1999 (P.L. 106-159) prohibited the use of leases as a means of having Mexican trucks operate beyond the border zones, until implementation of NAFTA‘s land transportation provisions. 75 U.S. Department of Transportation. Office of the Inspector General. Interim Report on Status of Implementing the North American Free Trade Agreement’s Cross-Border Trucking Provisions. Report no. MH-2001-059. Found that out-of-service rates for Mexican trucks has been declining and that the condition of Mexican trucks correlate with the level of inspection at the border. 76 The point where these companies interline or interchange with their Mexican partners may move deeper into the U.S. border states. 77 DOT IG Report # MH-2009-034, p. 22-23. 78 IEP report, p. 11. 79 Whitten, p. 13. 80 FMCSA officials.

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Chapter 3

SOUTHWEST BORDER VIOLENCE: ISSUES IN IDENTIFYING AND MEASURING SPILLOVER VIOLENCE Jennifer E. Lake, Kristin M. Finklea, Mark Eddy, Celinda Franco, Chad C. Haddal, William J. Krouse and Mark A. Rando

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SUMMARY There has been a recent increase in the level of drug trafficking-related violence within and between the drug trafficking organizations in Mexico. This violence has generated concern among U.S. policy makers that the violence in Mexico might spill over into the United States. Currently, U.S. federal officials deny that the recent increase in drug trafficking-related violence in Mexico has resulted in a spillover into the United States, but they acknowledge that the prospect is a serious concern. The most recent threat assessment indicates that the Mexican drug trafficking organizations pose the greatest drug trafficking threat to the United States, and this threat is driven partly by U.S. demand for drugs. Mexican drug trafficking organizations are the major suppliers and key producers of most illegal drugs smuggled into the United States across the Southwest border (SWB). The nature of the conflict between the Mexican drug trafficking organizations in Mexico has manifested itself, in part, as a struggle for control of these smuggling routes into the United States. Further, in an illegal marketplace—such as that of illicit drugs—where prices and profits are elevated due to the risks of operating outside the law, violence or the threat of violence becomes the primary means for settling disputes. When assessing the potential implications of the increased violence in Mexico, one of the central concerns for Congress is the potential for what has been termed ―spillover‖ violence— an increase in drug trafficking-related violence in United States. While the interagency community has defined spillover violence as violence targeted primarily at civilians and government entities— excluding trafficker-on-trafficker violence—other experts and scholars

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have recognized trafficker-on-trafficker violence as central to spillover. When defining and analyzing changes in drug trafficking-related violence within the United States to determine whether there has been (or may be in the future) any spillover violence, critical elements include who may be implicated in the violence (both perpetrators and victims), what type of violence may arise, when violence may appear, and where violence may occur (both along the SWB and in the nation‘s interior). Currently, no comprehensive, publicly available data exist that can definitively answer the question of whether there has been a significant spillover of drug trafficking-related violence into the United States. Although anecdotal reports have been mixed, U.S. government officials maintain that there has not yet been a significant spillover. In an examination of data that could provide insight into whether there has been a significant spillover in drug trafficking-related violence from Mexico into the United States, CRS analyzed violent crime data from the Federal Bureau of Investigation‘s Uniform Crime Report program. The data, however, do not allow analysts to determine what proportion of the violent crime rate is related to drug trafficking or, even more specifically, what proportion of drug trafficking-related violent crimes can be attributed to spillover violence. In conclusion, because the trends in the overall violent crime rate may not be indicative of trends in drug trafficking-related violent crimes, CRS is unable to draw definitive claims about trends in drug trafficking-related violence spilling over from Mexico into the United States.

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INTRODUCTION There has been a recent increase in the level of drug trafficking-related violence within and between the drug trafficking organizations (DTOs) in Mexico—a country with which the United States shares a nearly 2,000-mile border.1 Some estimates have placed the number of drug trafficking-related deaths in Mexico since January 2007 at over 14,000.2 Mexican media estimates have placed this death toll around 7,300 for 2009 alone. Further, Mexico‘s most violent city, Ciudad Juarez—with about 2,100 murders in 2009—is located directly across the border from El Paso, TX. This violence has generated concern among U.S. policy makers that the violence in Mexico might spill over into the United States. Currently, U.S. federal officials deny that the recent increase in drug trafficking-related violence in Mexico has resulted in a spillover into the United States, but they acknowledge that the prospect is a serious concern.3 As an extension of its counternarcotics policy, as well as in response to the possibility of violence spillover, the U.S. government is supporting Mexico‘s crackdown campaign against drug cartels in Mexico through the Mérida Initiative.4 It is also enhancing border security programs and reducing the movement of contraband (drugs, money, and weapons) in both directions across the Southwest border. When discussing drug trafficking-related violence in the United States, one important point to note is that the mere presence of Mexican drug trafficking organizations in the United States is not in and of itself an indication of the spillover of Mexican drug traffickingrelated violence in the United States. While their presence may be an indication of the drug problem in general, it does not necessarily reflect activity directly tied to the recent violence seen in Mexico. The DTOs (Mexican and others) have been developing sophisticated illicit drug smuggling and trafficking networks for years. These activities engender violence and

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associated criminal activity, not just along the border but in other areas throughout the country, such as along domestic interstate distribution networks and in major metropolitan areas.5 The United States has experienced levels of drug trafficking-related crime for many years.6 The immediate question confronting policy makers is whether the increasing violence between the drug trafficking organizations in Mexico affects either the level or character of drug trafficking-related violence in the United States. A related question is whether evidence of spillover violence would necessitate a policy response from Congress qualitatively different from the current efforts to combat drug trafficking. This chapter focuses on how policy makers would identify any spillover of drug trafficking-related violence into the United States. This chapter provides (1) an overview of Mexican drug trafficking organization structures, how they conduct business, and the relationship between the drug trafficking organizations in Mexico and their partnerships operating here in the United States; (2) a discussion of the illicit drug trade between Mexico and the United States, as well as a discussion of factors implicated in drug trafficking-related violence; (3) an analysis of the possible nature of any spillover violence that may arise, as well as issues involved in accurately identifying and measuring such violence; and (4) an evaluation of available crime rate data and a discussion of how this data may or may not reflect changes in drug trafficking-related crime. This chapter does not include a discussion of illicit drug enforcement issues,7 nor does it include specific policy options that may be considered to stem a potential uptick in drug trafficking-related violence. The Appendix describes selected recent U.S. efforts undertaken to address the possibility of spillover violence and the drug control problem.

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THE SOUTHWEST BORDER REGION AND THE ILLICIT DRUG TRADE BETWEEN THE UNITED STATES AND MEXICO The nature of the conflict between the Mexican DTOs in Mexico has manifested itself, in part, as a struggle for control of the smuggling routes into the United States.8 Therefore, the prospects for spillover violence are most keenly anticipated in the Southwest border (SWB) region of the United States because the region represents the arrival zone for the vast majority of illicit drugs that are smuggled into the country. The size, geography, and climate of the SWB region have long presented unique challenges to law enforcement. The southern border with Mexico stretches nearly 2,000 miles in length, is sparsely populated in some areas, and is dotted with legitimate crossing points (ports of entry)—both large and small. The National Drug Threat Assessment, 2008, summarized the illicit drug threat scenario along the SWB in stark terms: The Southwest Border Region is the most significant national-level storage, transportation, and transshipment area for illicit drug shipments that are destined for drug markets throughout the United States. The region is the principal arrival zone for most drugs smuggled into the Unites States; more illicit drugs are seized along the Southwest Border than in any other arrival zone. Mexican DTOs have developed sophisticated and expansive drug transportation networks extending from the Southwest Border to all regions of the United States. They smuggle significant quantities of illicit drugs through and between ports of entry (POEs) along the Southwest Border and store them in communities throughout the region.

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Jennifer E. Lake, Kristin M. Finklea, Mark Eddy et al. Most of the region‘s principal metropolitan areas, including Dallas, El Paso, Houston, Los Angeles, Phoenix, San Antonio, and San Diego, are significant storage locations as well as regional and national distribution centers. Mexican DTOs and criminal groups transport drug shipments from these locations to destinations throughout the country.9

The most recent threat assessment indicates that the Mexican drug trafficking organizations pose the greatest drug trafficking threat to the United States.10 Demand for illicit drugs in the United States partly drives this threat.

Demand for Drugs in the United States

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The United States is the largest consumer of illegal drugs and sustains a multi-billion dollar market in illegal drugs.11 According to the Central Intelligence Agency, the United States is the largest consumer of Colombian-produced cocaine and heroin, as well as a large consumer of Mexican-produced heroin, marijuana, and methamphetamine.12 The latest National Household Survey on Drug Use and Health (NSDUH),13 in 2008, surveyed individuals aged 12 and older regarding their drug use during the previous month. Survey results indicated that an estimated 20.1 million individuals were current (past month) illegal drug users, representing 8% of this population. This percentage of users had remained relatively stable since 2002.14 Among these drug users, marijuana was the most commonly used drug, with an estimated 15.2 million users (6.1% of the population), followed by nonmedical use of prescription-type psychotherapeutic drugs (6.2 million users, or 2.5% of individuals). The survey also estimated that there were 1.9 million users of cocaine (0.7% of Americans), as well as 1.1 million users of hallucinogens (0.4% of the population)—of which 555,000 reported use of Ecstasy. Results also estimated 314,000 methamphetamine users.

Supply of Illegal Drugs from Mexico Mexican drug trafficking organizations are the major suppliers and key producers15 of most illegal drugs smuggled into the United States across the SWB. Moreover, Mexico is the major transit country for cocaine, according to the U.S. State Department; as much as 90% of the cocaine consumed in the United States comes through Mexico.16 Further, cocaine trafficking is the leading drug threat17 in the United States, according to the NDIC‘s 2009 National Drug Threat Assessment. 18 According to the Drug Enforcement Administration (DEA), cocaine availability was lower in 2007 and 2008 (relative to 2005 and 2006) in certain areas of the United States for a number of reasons, including cocaine eradication, cocaine seizures, pressure on drug trafficking organizations in Mexico, inter-cartel violence, and border security. Mexican drug trafficking organizations are also the main foreign suppliers of marijuana and methamphetamine in the United States. There was a decline in seizures of Mexicanproduced methamphetamine beginning in 2006 and continuing in 2007 and 2008, in part because of Mexican import restrictions on precursor drugs beginning in 2005, as well as because some Mexican-based methamphetamine producers have more recently moved their laboratories into the United States.19 Despite the declines in the presence of Mexican-

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produced cocaine and methamphetamine, there was an increase in the flow of Mexicanproduced marijuana to the United States in 2007,20 as well as an increase in distribution of Mexican-produced heroin (particularly in the eastern and northeastern states).21 The true quantity of drugs produced and transported by Mexican drug trafficking organizations, however, is unknown. Available data provide insight into the quantity of drugs seized along the SWB, though this data cannot speak to the total amount of drugs produced and/or transported into the United States, nor does it provide information about the proportion of these drugs that are actually seized along the SWB. For instance, Table 1 illustrates federal seizures of illegal drugs along the SWB for calendar years (CY) 2003-2008. Total cocaine seizures along the SWB decreased in 2007 and 2008 relative to previous years when cocaine seizures had been increasing. Additionally in 2008, cannabis seizures along the SWB decreased while seizures of heroin and methamphetamine seizures increased over 2007 levels. These data, however, do not provide insight into the total amount of drugs illegally produced and transported by the DTOs. Rather, this data reflect an unknown proportion of drugs that the Mexican drug trafficking organizations are bringing into the United States through a variety of transportation modes. The 2009 National Drug Threat Assessment indicates that Mexican drug trafficking organizations, in addition to being the major supplier of illegal drugs being smuggled into the United States, also have a strong presence within the United States.22

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Mexican Drug Trafficking Organizations23 Mexican drug trafficking organizations are transnational organized crime groups24 whose criminal activities center primarily around the drug trade. In general, organized crime groups attempt to fill particular illicit market niches. Specifically, DTOs respond to the societal demand for illegal drugs. Some experts have likened drug trafficking organizations to corporations or even small nation-states. They are influenced by factors such as geography, politics, economics, and culture.25 Geographically, for example, Mexican DTOs are situated between the world‘s largest producer of cocaine (Colombia) and the world‘s largest consumer of cocaine (United States), leading Mexico to be a natural drug transshipment route between the two countries.26 In addition, major Mexican criminal organizations focus primarily (though not exclusively) on drugs, because the drug trade has, to date, generally proven to be more economically lucrative than other illicit activities such as kidnapping and extortion.27 Mexican drug trafficking organizations either (1) transport or (2) produce and transport drugs north across the United States-Mexico border.28 Figure 1 illustrates the drug trafficking routes within Mexico and at the United States-Mexico border. After being smuggled across the border by DTOs, the drugs are distributed and sold within the United States. The illicit proceeds may then be laundered or smuggled south across the border. The proceeds may also be used to purchase weapons in the United States that are then smuggled into Mexico.29 This leads to a general pattern of drugs flowing north across the border and money and guns flowing south.

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Jennifer E. Lake, Kristin M. Finklea, Mark Eddy et al. Table 1. U.S. Illegal Drug Seizures Along the Southwest Border (in metric tons)

Heroin Cocaine Cannabis Methamphetamine Total

CY2003 0.3 16.3 1201.0 1.9 1219.5

CY2004 0.4 22.0 1106.6 2.9 1131.9

CY2005 0.2 22.7 1025.7 2.9 1051.5

CY2006 0.5 28.2 1132.0 2.8 1163.5

CY2007 0.4 20.9 1367.8 1.7 1390.8

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Source: US DEA, in response to CRS request, March 27, 2008 and March 31, 2009.

CY2008 0.6 16.1 1254.4 2.2 1273.3

Source: Fred Burton and Ben West, When the Mexican Drug Trade Hits the Border, Stratfor Global Intelligence, April 15, 2009, http://www.stratfor.com/weekly/20090415_when_mexican_drug_trade Figure 1. Drug Routes Within Mexico and at the United States-Mexico Border

Although Mexican drug trafficking organizations have been active for some time, they have become more prominent since the decline of the powerful Colombian drug trafficking organizations beginning in the 1980s.30 The NDIC estimates that Mexican drug trafficking organizations maintain drug distribution networks—or supply drugs to distributors in at least 230 U.S. cities (as illustrated in Figure 2)—and annually transport multi-ton quantities of illicit drugs from Mexico into the United States using a variety of multi-modal transportation methods.31 Estimates are that these drugs generate between $18 billion and $39 billion in U.S. wholesale drug proceeds for the Colombian and Mexican drug trafficking organizations annually.32

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Source: National Drug Intelligence Center (NDIC), National Drug Threat Assessment, 2009, Map A5. U.S. cities reporting the presence of Mexican DTOs, January 1, 2006, through September 30, 2008, U.S. Department of Justice, Product No. 2008-Q0317-005, December 2008, http:// www.usdoj.gov/ndic/pubs31/31379/ appenda.htm#Map5.

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Figure 2. U.S. Cities Reporting the Presence of Mexican Drug Trafficking Organizations January 1, 2006-April 8, 2008

When conceptualizing Mexican drug trafficking organizations as businesses, policy makers may question the impact of possible drug trafficking-related violence spillover (into the United States) on the drug trafficking business—selling drugs in the U.S. black market. Although the effects of violence on businesses in the black market may not mirror those effects on business in the licit market, one way of examining this question may be to look at the impact that violence or violent crimes have on business in general. One recent study, for example, examined the impact of surges in violence on businesses in various industries in locations of varying crime rates.33 Results suggested that surges in violence had the most negative impact on those businesses that were service-related (e.g., retail and personal service industries) and located in typically low-crime areas. Specifically, the impact on business was in terms of a reduction in the number of new businesses, a decrease in business expansions, and a lack of overall business growth. In order to generalize these findings from retail businesses to drug businesses, one underlying assumption must be that the locations for buying retail goods and personal services are the same as those for purchasing drugs. If these findings are generalizable to the drug trafficking business, this could suggest that any spillover in drug trafficking-related violence to the United States could adversely affect those service-related businesses (including drug trafficking businesses) in cities with relatively (prespillover) low crime rates. On the other hand, if violence affects businesses in the licit and

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illicit markets differently, these findings may not apply to potential effects of drug traffickingrelated violence on drug trafficking business. Already, there have been anecdotal predictions regarding the impact of violence on drug trafficking business; Douglas, AZ, police chief Alberto Melis has said that ―spillover violence would be bad for business ... and they‘re [the drug traffickers] businessmen.‖34 Further, the Drug Enforcement Administration (DEA) has expressed moderate confidence that there will not be a significant increase in spillover violence—at least in the short term—because ―Mexican trafficking organizations understand that intentional targeting of U.S. persons or interests unrelated to the drug trade would likely undermine their own business interests.‖35

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Partnerships in the United States The NDIC has indicated that in order to facilitate the distribution and sale of drugs in the United States, Mexican drug trafficking organizations have formed relationships with U.S. street gangs, prison gangs, and outlaw motorcycle gangs.36 Although these gangs have historically been involved with retail-level drug distribution, their ties to the Mexican drug trafficking organizations have allowed them to become increasingly involved at the wholesale level as well.37 These gangs facilitate the movement of illicit drugs to urban, suburban, and rural areas of the United States. Not only do these domestic gangs distribute and sell the drugs, but they also aid in smuggling and enforcing the collection of drug proceeds.38 For example, Barrio Azteca is one of at least nine prominent U.S. prison gangs with ties to Mexican drug trafficking organizations.39 Barrio Azteca primarily generates money from smuggling marijuana, heroin, and cocaine across the Southwest border for the drug trafficking organizations, but they are also involved in other crimes, such as extortion, kidnapping, and alien smuggling.40 Activities Like other organized crime groups, Mexican drug trafficking organizations are profitdriven. While the primary goods trafficked by drug trafficking organizations are drugs, some experts have noted that these organizations do generate income from other illegal activities, such as the smuggling41 of humans and weapons, counterfeiting and piracy, kidnapping for ransom, and extortion.42 If the drug trafficking organizations are not able to generate income from the drugs— due to any number of reasons (increased Mexican or U.S. law enforcement, decreased drug supply, decreased drug demand, etc.)—they may increase their involvement in other money- generating illegal activities, such as kidnapping and home invasions. Take, for example, the number of drug trafficking-related kidnappings for ransom in Phoenix, AZ.43 The NDIC reported 358 such incidents in 2007 and 357 in 2008 (through December 15, 2008), and indicated that nearly every incident was drug-related.44 Further, the NDIC reports that these numbers may be underreported because victims may fear retaliation for reporting or may expose their own involvement in drug trafficking. Still, Tucson, AZ, police have reported that although there has been an increase in kidnappings for ransom and home invasions, the suspects in the cases are local criminals—not active drug trafficking organization members from Mexico.45 This disparity in reports indicates that while there may be an increase in certain illegal activities that may be tied to drug smuggling and trafficking, these illegal activities are not necessarily directly related to drug trafficking in general or to Mexican drug trafficking organizations in particular.

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RELATIONSHIP BETWEEN ILLICIT DRUG MARKETS AND VIOLENCE In an illegal marketplace, where prices and profits are elevated due to the risks of operating outside the law, violence or the threat of violence becomes the primary means for settling disputes and maintaining a semblance of order—however chaotic that ―order‖ might appear to the outside observer. This was a fundamental conclusion reached by the National Academy of Sciences Panel on the Understanding and Control of Violent Behavior.46 Because illegal drug markets operate outside the law, no courts or other forms of peaceful mediation47 exist for resolving disputes between drug producers, traffickers, and their customers. As with other black markets, drug markets are necessarily governed by the threat of violence, which may lead to actual violence. Illegal drugs and violence, then, are linked primarily through the operations of underground drug markets.48 Drug trafficking-related violence in Mexico has been on the rise; in 2008, there were more than 5,100 drug trafficking-related murders in Mexico—a 126% increase over 2007.49 Mexican drug trafficking organizations are now at war with each other as well as with the police and military personnel who are attempting to enforce the drug laws in northern Mexico along the U.S. border. The drug trafficking organizations, as a result of enforcement actions in Mexico, along with increasing border enforcement measures taken by the United States, are finding it more difficult and more costly to control the production zones and smuggling routes. One of the consequences of this increasingly competitive environment is a rise in the level of violence associated with the illicit drug trade as the drug trafficking organizations struggle for control over territory, markets, and smuggling routes. Policy makers are thus confronted with the uncomfortable possibility that increased law enforcement (which leads to increased difficulty and costs to control production zones and smuggling routes, and which in turn leads to the need to resolve disputes over such territories) could result in increased drug trafficking-related violence. This appears to be the situation that has recently developed in Mexico. This relationship gives rise to a number of important issues for policy makers. One such matter is evaluating the relative costs and benefits of increased enforcement of the current drug policy against the potentially elevated levels of violence that such increased enforcement might engender. 50 Could the drug trafficking-related violence currently evidenced in Mexico reach a level that would prompt U.S. policy makers to consider policy actions that could alter the underpinnings of the illegal drug market? It does not appear as if the violence has reached such a level as yet. Policy makers, however, have expressed significant concern over the possibility of the current violence in Mexico spilling over into the United States.

WHAT IS SPILLOVER VIOLENCE? When assessing the potential implications of increased violence in Mexico as a result of the increasing tensions between the drug trafficking organizations located in Mexico, one of the central concerns for U.S. policy makers is the potential for what has recently been termed ―spillover‖ violence—an increase in drug trafficking-related violence in United States. Given this concern, it is critical to develop an understanding of what ―spillover‖ is, what it might

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look like, how it might be measured, and what potential triggers for policy action can be identified from this analysis. To date, Congress has not adopted a formal definition of spillover violence. Several definitions and/or qualities of spillover violence have been provided by government officials, as well as experts and analysts. For instance, according to the DEA, the interagency community has defined spillover violence in the following manner:

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[S]pillover violence entails deliberate, planned attacks by the cartels on U.S. assets, including civilian, military, or law enforcement officials, innocent U.S. citizens, or physical institutions such as government buildings, consulates, or businesses. This definition does not include trafficker on trafficker violence, whether perpetrated in Mexico or the U.S.51

This definition of spillover provides a relatively narrow scope of what may constitute spillover violence. In particular, it excludes the category of violence—trafficker-on-trafficker violence—in which the vast majority of drug trafficking-related violence in Mexico has occurred. If policy makers and law enforcement are concerned that the drug traffickingrelated violence, as seen in Mexico, may spill over into the United States, they are necessarily concerned with this predominant category of trafficker-on-trafficker violence that is excluded from the interagency community‘s definition of spillover violence. The boundaries of what may constitute spillover violence, as defined by the interagency community, thus makes the likelihood that the United States will experience this form of spillover violence relatively small. Further, by generally constraining the definition of spillover violence to those acts that target the government and innocent civilians, the type of violence necessary to constitute spillover (according to the interagency definition) may begin to resemble acts of terrorism.52 If so, policy makers and experts may be challenged with discriminating between spillover violence and terrorism. Several experts and scholars have also discussed qualities of drug trafficking-related violence that may constitute spillover, including aspects of trafficker-on-trafficker violence. Such qualities are analyzed in the following section and may provide policy makers with additional definitions of spillover violence. Of note, this chapter does not address non-violent indicators—such as rising corruption of U.S. officials and law enforcement—that could be related to drug trafficking-related violence spillover.

Characteristics of Spillover Violence Some experts have suggested that a spillover of violence into the United States may look similar to the recent surge of violence in Mexico. In Mexico, this increasing violence has been seen through a rise in both the number of drug trafficking-related murders and the brutality of the murders. It is also taking the forms of increasing intimidation and fear, attacks on security forces, assassinations of high-ranking officials, growing arsenals of weapons, and indiscriminate killing of civilians.53 While a potential spillover of violence into the United States could appear similar to the violence in Mexico, the violence may be contingent upon numerous factors that differ between the United States and Mexico. For instance, the U.S. government may respond differently to domestic drug trafficking-related violence than the Mexican government has,

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and these differences in responses could in turn influence the nature of the drug traffickingrelated violence seen in each country. This section of the report discusses several factors that may be of concern as Congress debates the potential spillover of drug trafficking-related violence. These factors include who may be implicated in the violence, what type of violence may arise, when violence may appear, and where violence may occur.

Who May Be Implicated in Violence If the drug trafficking-related violence were to spill over from Mexico into the United States, Congress may be concerned with both the individuals perpetrating the violence as well as the victims of the violence.

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Perpetrators Reports on the drug trafficking-related violence in Mexico generally indicate that the perpetrators of violence are active members of drug trafficking organizations who are vying for territory, avenging betrayals, and reacting against the Mexican government‘s crackdown on the traffickers.54 If violence were to spill into the United States, policy makers may question whether the perpetrators of the violence will continue to be active drug trafficking members from Mexico, or whether violence will be inflicted by others who may be more indirectly tied to the drug trafficking organizations. As mentioned, the drug trafficking organizations have connections with U.S. groups such as street gangs, prison gangs, and outlaw motorcycle gangs who distribute and sell drugs, aid in smuggling drugs, and enforce the collection of drug proceeds.55 To date, reports from law enforcement on drug traffickingrelated violence in the United States are mixed; while some suggest that violence may be carried out by drug traffickers or other criminals from Mexico,56 others indicate that domestic drug traffickers or gang members may be responsible.57 Victims The violence plaguing Mexico has been directed toward several groups: competing drug trafficking organizations vying for territory, Mexican security forces, government officials, and those indebted to the traffickers. In fact, Mexican government officials have estimated that 90% of the murders in Mexico have targeted members of drug trafficking organizations.58 Although there have been reports of civilian bystanders being killed and isolated events of indiscriminate killing, there are not consistent reports of the drug traffickers targeting civilians who are unconnected to the drug trade.59 If there were to be a significant spillover of violence into the United States, policy makers may question whether the victims would be of a similar group as the victims of violence in Mexico. To date, the anecdotal reports of drug trafficking-related violence in the United States indicate that not only the perpetrators, but the victims of the crimes as well, are all somehow involved in the drug trade. 60 If any significant spillover of drug trafficking- related crime were to follow a similar pattern, policy makers could expect that individuals on both sides of the violence are connected to the drug trade. There are circumstances, however, under which the drug trafficking victims in the United States could extend to groups beyond those involved in trafficking. If there is an increase in violence and the U.S. government cracks down on the drug trafficking organizations similarly to the Mexican government, the traffickers‘ reactions in the United States may be similar to that seen in Mexico—a surge in violence against security forces and government officials.

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Federal officials have indicated that increased targeting of U.S. law enforcement personnel, similar to that which has occurred in Mexico, would constitute evidence of spillover.61 If, however, the U.S. response differs from that of Mexico, the reactions from the drug trafficking organizations may also differ. Further, a change in the victim pattern—to include innocent bystanders, for instance—may represent a departure from current patterns of drug trafficking-related violence and thus could represent a reasonable trigger for policy action to mitigate the effects of spillover violence.

What Type of Violence May Arise In Mexico, the drug trafficking-related violence most often reported is murder—over 14,000 drug trafficking-related deaths since January 2007.62 There have also been reports of kidnappings, home invasions, and assaults, among other crimes. In the United States, many of the anecdotal reports citing an increase in violence point to an increase in drug traffickingrelated kidnappings and home invasions. For instance, over the past two years, there have been reports of about 700 recorded kidnappings in Phoenix, AZ, that are related to drug and human smuggling.63 It is unknown how many of these kidnappings, if any, also have ties to drug smuggling;64 as mentioned, drug trafficking organizations may supplement their incomes with crimes other than drug trafficking if it is profitable. It is also unknown whether or not different types of violence are more associated with certain crimes (committed by drug traffickers) than with others. If there were to be a substantial spillover of drug traffickingrelated violence from Mexico, policy makers and law enforcement may be concerned with what types of violence may appear. Would the types of drug trafficking-related violence already seen in the United States to date (i.e., kidnappings and home invasions) become more prevalent, or would there be a greater emergence of the types of violence seen in Mexico (i.e., murders)? In addition to the type of violence, a spillover or increase in violence could also be measured by the nature of the violence. As mentioned, the rise in the number of murders in Mexico was also accompanied by increasing brutality, intimidation, and attacks on individuals other than those directly involved in the illicit drug trade (i.e., security forces and governmental officials).65 If any spillover of violence into the United States followed a similar pattern as the violence in Mexico, there may be an increase in the brutality of crimes in addition to an increase in the pure number of crimes. When Violence May Appear Critical to the assessment of whether the United States is experiencing spillover violence is the establishment of a realistic timeline for measuring the change in drug trafficking-related violence in the United States. If the policy goal is to determine if any spillover violence is occurring in the United States as a result of the increasing violence in Mexico, then it would be logical to look at trends in drug trafficking-related crime in the United States since the onset of the conditions that precipitated the recent violence in Mexico—roughly beginning around when Mexican President Felipe Calderon took office in December, 2006.66 A comparison of the trends in drug-trafficking related violence (in the United States) before and after this reference point might shed some light on whether or not the United States is experiencing spillover violence.

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As noted, the United States has experienced and continues to experience certain levels of drug trafficking-related crime. It may be difficult to isolate those drug trafficking-related violent crimes that are occurring either directly or indirectly as a result of the situation in Mexico. Therefore, it may also be useful for policy makers to use this same timeframe to measure changes in other spillover indicators, such as changes in the profile of victims of drug trafficking-related crime, the number and nature of violent attacks on U.S. law enforcement personnel, and changes in the nature of drug trafficking-related violence. This could be one means to standardize the measurement of any potential spillover and to provide policy makers with a more concrete idea of the trends. The discussion of when the violence occurs begs the question of where to measure any potential change in violence.

Where Violence May Occur As may be expected, the majority of the discussion surrounding the prospects of spillover violence in the United States has been focused on the Southwest border (SWB). Initially, this makes intuitive sense. Even the very term ―spillover‖ suggests the spread of violence across the border from Mexico—almost by osmosis. From a policy perspective, it is useful to question whether or not a focus exclusively on the border makes sense. Certainly this is where the analysis should begin as the SWB region is the primary region that links production and smuggling operations within Mexico to the United States. As noted, however, the drug trafficking organizations‘ operations within the United States are geographically dispersed throughout at least 230 cities. Drug trafficking organizations are businesses, and they not only maintain their own presence in the United States but also have relationships with U.S. groups such as street gangs, prison gangs, and outlaw motorcycle gangs to facilitate the distribution and sale of drugs within the United States. Given that drug trafficking-related violence is prevalent throughout the United States, the task for policy makers is to concentrate the geographic analysis of changes in drug trafficking-related violence around areas that would have the greatest likelihood of eliciting evidence of spillover. One possible method of accomplishing this task could be to look at the various factors discussed above—changes in the levels, nature, and victim pattern of drug trafficking-related violence in selected geographic locations—along a timeline that corresponds with the escalation of drug trafficking violence in Mexico. Of course, the critical issue is selecting those geographic locations. Areas already identified as strategically important to drug trafficking operations here in the United States would be an optimal place to start. These locations would include cities, states, and localities in the SWB region, as well as along significant inland distribution routes. Policy makers may also wish to examine geographic areas that are not currently identified as strategically important to drug trafficking operations here in the United States, as a control for comparison.

CHALLENGES IN EVALUATING AND RESPONDING TO SPILLOVER VIOLENCE This section of the report discusses some of the challenges facing policy makers when considering policy options dealing with drug control and border security issues in general. These issues are discussed more generally because they provide the context within which any

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specific options for dealing with the potential spillover of drug trafficking-related violence will be determined. These policy challenges include the complexity of the issue, defining goals and objectives, and measuring the problem.

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Complexity of the Issue As evidenced through some of the above discussion, there are many federal agencies, state and local entities, task forces, intelligence centers, and various other groups that are not only involved in drug control policy in general, but have specific roles in countering threats posed by the Mexican drug trafficking organizations. Each of these agencies has different authorities, budgets, resources, and responsibilities when it comes to the drug control issue (the Appendix to this chapter details the recent drug control efforts of these agencies). This complexity has also been evident in the federal government‘s current response to the increasing drug trafficking-related violence in Mexico. The policy implication of this intricate web of jurisdictions is that it is difficult to centralize the establishment, implementation, and evaluation of policies—be they drug control policies in general, or the specific policy responses to the increased drug trafficking- related violence. Several congressional hearings have been held on various aspects of the drug control and drug trafficking-related violence issues,67 and some congressional policy makers have voiced their concerns over the lack of centralized direction on these issues. In particular, Congress has expressed concern over who is taking the lead—not just among the involved agencies— but within Congress itself. 68 Complicated congressional jurisdiction spread across a variety of committees in both houses means that oversight of the drug control and the drug trafficking violence issues is equally complex. Consequently, coordination of oversight of the areas is problematic and difficult to manage. Adding further complexity is the fact that few of the agencies involved in the drug control effort are solely dedicated to a counterdrug mission (DEA and ONDCP being two of few exceptions). This presents several challenges in analyzing drug control policy. One challenge, for example, involves disaggregating an agency‘s drug control mission and activities from its other missions and activities. Take, for instance, interdiction at ports of entry. CBP officers select people, goods, and conveyances for additional scrutiny based on a variety of factors. Often, officers have no idea what the ultimate outcome of a physical inspection might be. The inspection might uncover illicit drugs, or it might uncover cash, weapons, or any number of items that are prohibited from entering the country. How then, may one estimate the portion of CBP officers‘ time that is spent on the counterdrug effort? This same question applies to the multitude of other agencies that also have drug control responsibilities. The question becomes even more difficult to answer when the aim is to analyze a specific drug control policy—such as specific policies targeted toward any potential spillover violence from Mexico. Disaggregating the drug control mission (or specific policies), however, is critical on several levels; not only does it affect the measurement of an agency‘s progress in implementing drug control efforts, but it also affects the directing of resources towards these efforts or specific policies.

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Defining Goals and Objectives The definition of success is a critical aspect of policy evaluation. As noted above, the existing complexities surrounding drug control policies in general, and policies to address the potential spillover violence from Mexico in particular, complicate the evaluation of these policies. For this reason, it is important to identify appropriate goals or objectives either for what might be an overall strategy or for specific policies. For example, the appropriate domestic policy response to the increased drug traffickingrelated violence in Mexico is difficult to articulate. This is because several forces are at work; it is tempting to conflate the response to a specific iteration of the problem (the change in drug trafficking-related violence in Mexico) with the drug control problem in general and, at the same time, to disaggregate the issue down to so many constituent parts (outbound inspections at the border, kidnappings in Phoenix, straw purchases69 in Houston, a drug trafficking-related shooting in El Paso, etc.). This allows for the potential to obscure the actual policy problem to be confronted. From a policy perspective also, the degree to which this conflation or disaggregation occurs may not matter in the final analysis if the appropriate metrics are ultimately used to evaluate each. With particular relevance to the subject of this chapter, if the policy task is to identify any potential or actual drug trafficking-related spillover violence in the United States, and the appropriate drug activity indicators can be accurately identified, the issue becomes how to correlate any change in drug activity indicators to the increased drug trafficking-related violence in Mexico. One potential complication with such an analysis is uniformly defining what constitutes drug-related violence. This could potentially be broken down into three general categories: crimes committed by people under the influence of drugs; economic-compulsive crimes (crimes committed in order to obtain money or drugs to support drug use); and what are termed systemic drug crimes— crimes that result from the business of trafficking illicit drugs.70 These definitions are important, because while the commission of crimes by people who are under the influence of illegal drugs and economic-compulsive crimes present important policy issues in and of themselves, changes in these indicators contribute little value to the determination of whether or not the United States is experiencing any spillover violence from Mexico particularly related to the recent increase in drug trafficking-related violence.

Measuring the Problem The issue of measurement is important in several different contexts. There are issues with the collection and reporting of drug control statistics, as well as questions concerning what value the reported measures have. Because the drug control issue is complex, and so many agencies participate in its execution, invariably there are going to be differences in how agencies collect and report enforcement statistics. Central to the issue at hand in this chapter is the question of how to measure changes in drug-related violence, and specifically drug trafficking-related violence. Even an indicator that conceptually could provide some value added to the central question (to choose an example popularly cited in the media—violent crimes excluding

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robberies) is difficult to evaluate. For example, in Tucson, the number of violent crimes excluding robberies from January to March of 2009 was 632; for the same period in 2008 the number was 651. So, there were fewer violent crimes in Tucson in the first three months of 2009 than in 2008.71 These are not necessarily drug trafficking-related violent crimes, but if the premise—that the United States is experiencing spillover violence stemming from the drug trafficking activity in Mexico—is accurate, one would expect violent crimes to go up, and drug trafficking-related violent crimes would be included in the more general violent crime reporting. On the other hand, a significant drop in non-drug trafficking-related violence could obscure a rise in actual drug trafficking- related violent crime. However, the true driver of the change in drug trafficking-related violent crime cannot be ascertained from these statistics. Another measurement issue is where to look for changes in drug-trafficking-related violence. This is another area where the problems with available data are manifested. Ideally, to conduct this analysis, one would have access to drug-trafficking-related violent crime data from the geographic areas of interest (border and interior locations with known drug trafficking activity). This data would be available in small geographic increments so that local differences could be taken into account, and it would be consistently available in comparable sets across an adequately long time period so as to conduct a statistically significant trend analysis. Unfortunately, this and other data are not readily available for analysis, as detailed in the section outlining the Congressional Research Service‘s (CRS‘s) evaluation of available data.

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Is There Spillover Violence? As discussed, a multitude of factors are involved in both defining as well as measuring spillover violence. Currently, there is no comprehensive, publicly available data that can definitively answer the question of whether there has been a significant spillover of drug trafficking-related violence into the United States. Although anecdotal reports have been mixed, U.S. government officials maintain that there has not yet been a significant spillover.

Analysis In an examination of data that could provide insight into whether there has been a significant spillover in drug trafficking-related violence from Mexico into the United States, CRS undertook an analysis of violent crime data from the FBI‘s Uniform Crime Report (UCR) program.72 Of note, however, the UCR data does not allow analysts to determine what proportion of the violent crime rate is related to drug trafficking or, even more specifically, what proportion of drug trafficking-related violent crimes can be attributed to spillover violence. The UCR compiles data from monthly reports from approximately 17,000 local police departments or state agencies, and it provides some of the most commonly cited crime statistics in the United States. Under the UCR program, the FBI collects data on the number of offenses known to police, the number and characteristics of persons arrested, and the number of ―clearances‖ for eight different offenses, collectively referred to as Part I offenses. Part I offenses include murder and nonnegligent manslaughter, forcible rape, robbery, aggravated assault, burglary, larceny-theft, motor vehicle theft, and arson.73 Within the Part I

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offenses, crimes are categorized as either violent or property crimes. Violent crimes include murder and nonnegligent manslaughter, forcible rape, robbery, and aggravated assault. Property crimes include burglary, larceny-theft, motor vehicle theft, and arson. The UCR, however, is not a comprehensive source for data on crime in the United States. It collects offense data on a limited number of crimes (Part I crimes), which means that offense data are available only for a small number of all crimes committed in the United States. For instance, it does not include data on kidnapping—one of the oft-cited drug trafficking-related crimes discussed as evidence of spillover violence. Further, the inclusivity of the UCR data is affected by other factors such as whether or not local law enforcement chooses to report data to the FBI, the variety in reporting and data classification practices of local law enforcement agencies, and the imputation methods used by the FBI to estimate crime in jurisdictions that have not reported for an entire year.74 For the purpose of this chapter, CRS presents and analyzes violent crime rates as reported by the UCR program, as policy makers have repeatedly expressed concern about the possibility of drug trafficking-related violent crimes increasing.75 In addition to providing the overall national violent and property crime rates annually, the UCR program also provides these crime rates for metropolitan statistical areas (MSAs).76 In the present analysis of violent crime rate data, CRS relies upon the violent crime rate data for the MSAs as calculated by the UCR program. As mentioned, the violent crime rate includes murder and nonnegligent manslaughter, forcible rape, robbery, and aggravated assault. As mentioned, the NDIC estimates that Mexican drug trafficking organizations maintain drug distribution networks—or supply drugs to distributors in at least 230 U.S. cities (as illustrated in Figure 2).77 Because this information is assimilated based on state and local law enforcement agency estimations, as well as law enforcement interviews with NDIC staff, this is not necessarily a comprehensive or nuanced picture of Mexican drug trafficking presence in cities around the United States. For instance, while some cities may experience a larger amount of drug trafficking activity than others, these cities are considered as equally experiencing drug trafficking presence for the purpose of the NDIC estimate. In addition, there may be other cities not reporting the presence of drug trafficking organizations, even if these organizations are active in those cities. If drug trafficking-related violence is in fact increasing in those cities reporting a presence of Mexican drug trafficking organizations, one may expect to see an increase in such violence in the 230 cities identified by the NDIC—or perhaps only in those cities that are situated along the SWB if the violence is truly spilling directly across the border. Further, if this increase in violence were to follow a similar time frame as the escalating violence in Mexico, one may expect to see an increase in violence since December 2006, when Mexican President Felipe Calderon took office and began to crack down on the drug trafficking organizations.78 For each of these 230 cities, CRS determined whether there was a corresponding MSA and violent crime rate reported in the UCR for that MSA. CRS identified 138 such MSAs, 8 of which directly abut the border between the United States and Mexico.79 As illustrated in Figure 3, CRS calculated the average violent crime rate across the border MSAs and the non-border MSAs for each of fiscal years 1999 through 2008. CRS analysis of available data suggests that the violent crime rate has not significantly increased in those areas where there is an identified presence of Mexican drug trafficking organizations, as well as available data on the violent crime rate for those MSAs. Further, such analysis suggests there is no statistically significant difference in the average violent

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crime rate in these border and non-border MSAs between fiscal years 1999 and 2008. Since 2001, the average violent crime rate in the eight selected border MSAs has generally declined, and it has remained below the national violent crime rate since 2005.80 It is unknown, however, whether trends in the violent crime rate are related to changes in drug traffickingrelated violent crimes. Because the violent crime rate is a compilation of violent crimes both related and unrelated to drug trafficking, an increase in drug trafficking-related violent crime could be masked by a decrease in those violent crimes not related to trafficking—or vice versa.

Source: CRS analysis and presentation of UCR data. UCR data is available from the Federal Bureau of Investigation at http://www.fbi.gov/ucr/ucr.htm. Notes: The UCR data is based on the average violent crime rate data across selected MSAs. The selected MSAs are those that correspond to cities identified by the NDIC as having a presence of Mexican drug trafficking organizations. Border MSAs (N = 8) are those which directly abut the border between the United States and Mexico, and non-border MSAs (N = 130) are those which do not touch the SWB. The national violent crime rate is presented as a point of reference. CRS performed an ANOVA comparing the average violent crime rate between border and non-border MSAs across fiscal years 1999 through 2008. The data indicate that there is no evidence of a statistically significant difference between violent crime rates in border and non-border MSAs, F(1,18) = 2.48, p > .05. Figure 3. Violent Crime Rate in Selected MSAs FY1999-FY2008

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Source: CRS analysis and presentation of UCR data. UCR data is available from the Federal Bureau of Investigation at http://www.fbi.gov/ucr/ucr.htm. Notes: The selected MSAs are those that correspond to cities identified by the NDIC as having a presence of Mexican drug trafficking organizations. The national violent crime rate is presented as a point of reference.

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Figure 4. Violent Crime Rate in Selected Southwest Border MSAs FY1999-FY2008

Looking at the aggregate of border and non-border MSAs, however, may not provide information as to trends in individual MSAs or cities. For example, Figure 4 illustrates the trends in violent crime rates in eight border MSAs. As mentioned, if spillover violence were to trend in time with the escalating violence in Mexico, analysts may expect to see an increase in drug trafficking- related violence in 2007 and 2008 relative to previous years. Although two MSAs—Laredo, TX and El Paso, TX—experienced an increase in violent crime rates in both 2007 and 2008 compared to 2006, the violent crime rate in the Laredo and El Paso MSAs remained lower than their violent crime rates in fiscal years 2003 and 1999-2004, respectively. This may be counterintuitive to some who expect that a ―spillover‖ in violence may touch those cities closest in proximity to the violence in Mexico; Laredo and El Paso sit directly across the Southwest border from two of the most violent Mexican cities—Nuevo Laredo and Juarez.81 Further, anecdotal reports suggest that while some cities have seen a spillover in drug trafficking-related violence, Laredo and El Paso have not.82 Spillover violence may not occur uniformly across the entire SWB during the same time periods. There may be hot-spot ―flare-ups‖ in response to Mexican drug trafficking activity directly across the border. If this were true, violence would have climbed in Laredo, TX, in 2004 and 2005 when there was an increase in drug trafficking-related violence across the border in Nuevo Laredo. It did not. Also using this hot-spot analysis, the more recent increase in violence in Juarez should be linked to an increase in violence in El Paso, TX, in 2008. In this case, an increase in violence in a Mexican city does appear to be correlated with an

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increase in violence in a neighboring U.S. city. This further illustrates that relying on trends in overall violent crime rates may not provide an accurate depiction of trends in violent crime (or more specifically, in drug trafficking-related violent crime) around the country. Another possibility is that there may be a time lag between drug trafficking-related violence in Mexico and any associated violence in the United States. For instance, after settling territorial disputes in Mexico, rival drug trafficking organizations may engage in violent conflict on the U.S. side of the border. With the data available, however, it is not possible to separate out a time lag from other factors that may influence levels of drug trafficking-related violence that may be seen in the United States.

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CONCLUSION Mexico has experienced an increase in the level of drug trafficking-related violence within and between the drug trafficking organizations (DTOs), and the number of drug trafficking-related deaths in Mexico since January 2007 has been estimated at over 14,000.83 Congress remains concerned with the possibility that the current drug trafficking-related violence in Mexico may spill over into the Untied States. One of the primary challenges in assessing this violence is defining the term spillover. While the interagency community has defined spillover violence as violence targeted primarily at civilians and government entities—excluding trafficker-on trafficker-violence—other experts and scholars have recognized trafficker-on-trafficker violence as central to spillover. When defining and analyzing changes in drug trafficking-related violence within the United States to determine whether there has been (or may be in the future) any spillover violence, critical elements include who may be implicated in the violence (both perpetrators and victims), what type of violence may arise, when violence may appear, and where violence may occur (both along the Southwest border and in the nation‘s interior). At present, there is no comprehensive, publicly available data that can definitively answer the question of whether there has been a significant spillover of drug trafficking-related violence into the United States. Although anecdotal reports have been mixed, U.S. government officials maintain that there has not yet been a significant spillover. CRS analyzed violent crime data from the Federal Bureau of Investigation‘s (FBI‘s) Uniform Crime Report program in order to examine data that could provide insight into whether there has been a significant spillover in drug trafficking-related violence from Mexico into the United States. However, this violent crime data does not allow CRS to determine the proportion of violent crimes that are related to drug trafficking or, even more specifically, the proportion of drug trafficking-related violent crimes that are attributable to spillover violence. In its analysis, CRS calculated the average violent crime rate across eight selected Metropolitan Statistical Areas (MSAs) along the Southwest border and 130 selected nonborder MSAs—identified by the National Drug Intelligence Center (NDIC) as having the presence of Mexican drug trafficking organizations—for each of fiscal years 1999 through 2008. CRS analysis suggests that the violent crime rate has not significantly increased in those areas where there is an identified presence of Mexican drug trafficking organizations. Further, there appears to be no significant difference in the average violent crime rate in the selected border and non-border MSAs between fiscal years 1999 and 2008. In conclusion,

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however, because the trends in the overall violent crime rate may not be indicative of trends in drug trafficking-related violent crimes, CRS is unable to draw definitive claims about trends in drug trafficking-related violence spilling over from Mexico into the United States.

APPENDIX. SELECTED U.S. EFFORTS AND ISSUES Various departments and agencies are involved in combating drug-related activity both along the Southwest border and throughout the United States. This Appendix outlines selected U.S. efforts to counter the body of threats posed by drug trafficking organizations (DTOs). Although these efforts are not necessarily tailored to the current violence in Mexico or to the prospect of a spillover of violence into the United States, they include strategies and operations that may address the violence.

Stopping the Flow of Drugs, Guns, and Money

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Various agencies have introduced initiatives to stop the northbound flow of drugs into the United States while also stemming the southbound flow of money and guns into Mexico. For example, DHS has increased efforts both on land and at sea. According to DHS, Customs and Border Protection (CBP) launched 100% southbound rail screening in March of 2009 at all SWB rail crossings.84 Also, DHS announced its intention to increase maritime interdictions, with a special emphasis on go-fast boats.85

Drugs The Department of Justice (DOJ) is the federal agency responsible for enforcing federal criminal laws, and within it, the DEA is the only federal agency whose sole mission is to enforce federal drug laws. Working with its counterpart agencies on both sides of the border, the DEA pursues investigations and develops intelligence with the goal of identifying, infiltrating, and destroying drug trafficking organizations and disrupting their operations. At the end of FY2008, the DEA had 1,203 authorized Special Agent positions working in domestic offices with responsibilities for the SWB, amounting to approximately 23% of DEA‘s total authorized Special Agent workforce.86 The Office of National Drug Control Policy (ONDCP), located in the Executive Office of the President, is the agency responsible for coordinating the national drug control effort, promulgating the federal drug control strategy, and overseeing the strategy‘s implementation. The ONDCP director, also known as the Drug Czar, is responsible for submitting to Congress every two years a SWB Counternarcotics Strategy, the 2009 version of which is discussed later in this Appendix. The ONDCP also participates in the Southwest Border-Mérida Initiative Interagency Policy Committee and its associated Deputy Committee meetings. This entity addresses all policy issues concerning domestic Southwest border issues as well as implementation of the Mérida Initiative. 87

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Organized Crime Drug Enforcement Task Force (OCDETF) Program The Organized Crime Drug Enforcement Task Force (OCDETF) Program targets—with the intent to disrupt and dismantle—major drug trafficking and money laundering organizations. Federal agencies that participate in the OCDETF Program include the Drug Enforcement Administration (DEA), the Federal Bureau of Investigation (FBI), Immigration and Customs Enforcement (ICE), the Bureau of Alcohol, Tobacco and Firearms (ATF), U.S. Marshals, Internal Revenue Service (IRS), U.S. Coast Guard, the 94 U.S. Attorneys Offices, and DOJ‘s Criminal and Tax Divisions. These federal agencies also collaborate with state and local law enforcement. 88 The OCDETFs operate in nine regions around the country and target those organizations that have been identified on the Consolidated Priority Organization Targets (CPOT) List, which is the ―most wanted‖ list for leaders of drug trafficking and money laundering organizations.89

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High Intensity Drug Trafficking Areas (HIDTAs) The ONDCP director has the authority to designate areas within the United States that are centers of illegal drug production, manufacturing, importation, or distribution as High Intensity Drug Trafficking Areas (HIDTAs). All of the U.S. counties in the four states along the Mexican border were included in the SWB HIDTA when it was created in 1990. The HIDTA collects and shares intelligence and coordinates task forces composed of federal, state, and local agents that target drug-trafficking operations along the border. Border Enforcement Security Task Forces (BEST) The BEST initiative90 consists of a series of multi-agency investigative task forces, of which ICE is the lead agency. They seek to identify, disrupt, and dismantle criminal organizations posing significant threats to border security. Other agency participants include CBP, DEA, ATF, FBI, USCG, and the U.S. Attorneys Offices, and state and local law enforcement. The Mexican law enforcement agency Secretaria de Seguridad Publica is a partner along the southern border. The Royal Canadian Mounted Police and Canadian Border Services Agency are partners on the northern border. There are currently 12 BEST task forces, 8 on the Southwest border, 2 on the northern border and 2 at major seaports (Los Angeles and Miami). Each BEST concentrates on the prevalent threat in its area. On the southern border, this entails cross-border violence, weapons smuggling and trafficking, illegal drug and other contraband smuggling, money laundering and bulk cash smuggling, and human smuggling and trafficking. Guns91 According to DOJ, ATF is the lead law enforcement agency responsible for stopping illegal gun trafficking from the United States to Mexico, given the bureau‘s statutory mission and authority.92 In recent years, ATF has increased its efforts to suppress illegal gun trafficking in the Southwest border region of the United States. ATF reports that Mexican DTOs are increasingly sending enforcers—individuals responsible for intimidating individuals, collecting drug debts, and ensuring compliance with DTO activities—across the border to hire surrogates (straw purchasers)93 who buy several ―military-style‖ firearms at a time from federal firearms licensees (FFLs). The DTOs reportedly favor pistols that are equipped to accept high-capacity magazines and are chambered to accommodate

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comparatively large cartridges capable of piercing through armor vests typically worn by law enforcement officers. Less frequently, but no less troubling to law enforcement, the DTOs have also sought .50 caliber sniper rifles.

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Firearms Enforcement The Gun Control Act of 1968 (GCA), as amended, contains the principal federal restrictions on domestic commerce in small arms and ammunition. The statute requires all persons manufacturing, importing, or selling firearms as a business to be federally licensed; prohibits the interstate mail-order sale of all firearms; and prohibits interstate sale of handguns generally and sets forth categories of persons to whom firearms or ammunition may not be sold, such as persons under a specified age or with criminal records. It also authorizes the Attorney General to prohibit the importation of non-sporting firearms, requires that dealers maintain records of all commercial gun sales, and establishes special penalties for the use of a firearm in the perpetration of a federal drug trafficking offense or crime of violence. Although there is no definition for ―gun trafficking‖ in the GCA, it essentially entails the movement or diversion of firearms from legal to illegal markets.94 Unlike other forms of contraband, almost all illegal firearms used criminally in the United States were diverted at some point from legal channels of commerce.95 Inspections of Federal Firearms Licensees ATF inspects FFLs, or licensed gun dealers, to monitor their compliance with the GCA, and to prevent the diversion of firearms from legal to illegal channels of commerce. In the past, despite its crime-fighting mission, ATF‘s business relationships with the firearms industry and larger gun- owning community have been a perennial source of tension, which from time to time has been the subject of congressional oversight.96 Nevertheless, under current law, ATF Special Agents and Industry Operations Investigators are authorized to inspect or examine the inventory and records of an FFL without search warrants under three scenarios:97  



in the course of a reasonable inquiry during the course of a criminal investigation of a person or persons other than the FFL; to ensure compliance with the record keeping requirements of the GCA—not more than once during any 12-month period, or at any time with respect to records relating to a firearm involved in a criminal investigation that is traced to the licensee; or when such an inspection or examination is required for determining the disposition of one or more firearms in the course of a criminal investigation.

For 2008, ATF reported that there were 6,647 FFLs in the United States operating in the Southwest border region of Texas, New Mexico, Arizona, and California.98 By inspecting the firearms transfer records that FFLs are required by law to maintain, ATF investigators are often able to uncover evidence of corrupt FFLs dealing in firearms ―off the books,‖ straw purchases, and other patterns of possibly illegal behavior.

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Straw Purchases and the Ant Run Routine, small-scale smuggling of guns across the border often involves a series of straw purchases, during which guns are purchased from FFLs in border states and then sold to a middle man, who then smuggles the guns across the border. Repeated trips across the border of one to three guns, referred to in border parlance as the ant (hormiga) run, is a common way firearms are smuggled into Mexico.99 In the United States, straw purchases are illegal under the GCA.100 When a person buys a firearm from an FFL, the buyer and the FFL are required to fill out an ATF Form 4473. The FFL is required to verify the purchaser‘s name, address, date of birth, and other information by examining a state-issued piece of identification, most often a driver‘s license. If the purchaser or dealer falsifies any information on the Form 4473, it is a federal offense punishable by no more than 10 years imprisonment and/or a fine.101 It is also illegal for the gun trafficker to sponsor the straw purchase, because it is a federal offense for any person to aid, abet, counsel, command, or solicit a criminal act;102 or engage in a conspiracy to defraud the United States. It is also illegal to smuggle firearms out of the United States.103 Gun Shows and Private Firearms Transfers Private, intrastate firearm transfers are legal in some states at gun shows and flea markets. A person who is not ―engaged in the business‖ of dealing firearms may transfer firearms to another person as long as he does not do so knowingly to a prohibited person, and as long as he does not knowingly transfer a handgun to a person who is not a resident of the state in which the transfer occurs.104 It is notable that firearms acquired through private transfers, particularly multiple private transfers, are much more difficult to trace. Consequently, there is likely to be a premium for such firearms in illegal markets on both sides of the border, as there would also be for some stolen firearms, because there are no paper trails for these firearms. Southwest border states in which private transfers at gun shows are legal include Texas, New Mexico, Arizona, and California, but gun shows and all private firearm transfers are more strictly regulated in California.105 Firearms Tracing for Mexican Authorities ATF also maintains a foreign attaché in Mexico City to administer an Electronic Trace Submission System (ETSS), also known as the e-Trace program, for Mexican law enforcement authorities. From FY2005 through FY2007, ATF traced just over 11,700 firearms recovered by Mexican authorities, and approximately 90% of those firearms were traced back to the United States.106 Successful firearm traces are instrumental in developing investigative leads in homicide and gun trafficking cases. According to ATF, some of those cases uncover corrupt FFLs who were involved in larger criminal conspiracies to smuggle firearms into Mexico. 107 In January 2008, ATF announced that e-Trace technology would be deployed to an additional nine U.S. consulates in Mexico (Mérida, Juarez, Monterrey, Nogales, Hermosillo, Guadalajara, Tijuana, Matamoros, and Nueva Laredo).108 The number of traces performed by ATF for Mexican authorities during FY2008 increased markedly. During FY2008, ATF traced 7,743 firearms recovered by Mexican authorities, as compared with the 11,700 firearms traced over a three-year period, FY2005- FY2007.109 Of those firearms, 63.5% were determined to have been manufactured in the United States and 29.5% were determined to have been manufactured abroad, but imported into the United States.110

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Consequently, 93% of firearms traced by ATF during FY2008 for Mexican authorities were either made in, or imported to, the United States.111

Project Gunrunner During FY2006 and FY2007, ATF conducted Project Gunrunner to disrupt the illegal flow of firearms from the United States to Mexico. During those years, ATF dedicated approximately 100 special agents and 25 Industry Operations Investigators to a SWB region. In FY2007, ATF agents investigated 187 firearms trafficking cases and recommended 465 defendants for prosecution.112 By the end of FY2008, ATF had deployed 146 special agents and 68 industry operations investigators to the SWB to bolster that initiative at a conservatively estimated cost of $32.2 million.113

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Armas Cruzadas Armas Cruzadas is a partnership between U.S. and Mexican law enforcement agencies. 114 Its objective is to synchronize bilateral law enforcement and intelligence sharing operations in order to identify, disrupt, and dismantle trans-border weapons smuggling networks. Among the activities under Armas Cruzadas, ICE Border Liaisons are deployed to the border to strengthen bilateral communication. There is also a Weapons Virtual Task Force, a virtual online community where U.S. and Mexican investigators can share intelligence and communicate in a secure environment.115 For the United States, ICE is a major participant agency in Armas Cruzadas because of its authority as the federal agency responsible for investigating cases involving weapons being smuggled out of the United States. ATF participates as a result of its authority over weapons being illegally sold and transported within the United States. CBP is also a participating agency due to its border security responsibilities. Money As mentioned, the sale of illegal drugs in the United States generates somewhere between $18 billion and $39 billion in annual wholesale proceeds for Mexican and Colombian DTOs.116 Money from the DTOs‘ illegal sale of drugs in the United States is moved south across the border into Mexico. Moving these funds from the United States into Mexico fuels the drug traffickers‘ criminal activities. This money is not directly deposited into the U.S. financial system, but rather is illegally laundered through mechanisms such as bulk cash smuggling, the Black Market Peso Exchange117 (BMPE), or placed in financial institutions, cash-intensive front businesses, prepaid stored value cards (PSVCs), or money services businesses (MSBs). The NDIC indicates that the development of new technologies has provided outlets through which DTOs may conceal their illicit proceeds. The Financial Crimes Enforcement Network (FinCEN), under the Department of the Treasury is involved in six High Intensity Financial Crime Areas (HIFCAs).118 HIFCAs are designated by the Secretary of the Treasury, in consultation with the Attorney General, and are eligible to apply for federal funds to aid in specific law enforcement initiatives. HIFCAs are required to be discussed in the Secretary of the Treasury‘s national strategy on money laundering and related financial crimes—the last of which was required to be (and was) submitted to Congress in 2007.119 These areas are designated to focus federal efforts at combating money laundering in areas with the highest money laundering activity. Two

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HIFCAs that are directly involved with combating money laundering related to drug trafficking along the Southwest border are the California Southern District HIFCA and the Southwest Border HIFCA. The California Southern District HIFCA includes six counties in southern California, but does not include the two California counties (San Diego and Imperial counties) that directly abut the Southwest border. The Southwest Border HIFCA includes all counties in Arizona and Texas counties directly along the Southwest border as well as those counties directly adjacent to the border counties.

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Bulk Cash Smuggling Bulk cash smuggling is one of the primary means by which DTOs launder their illicit proceeds south across the United States-Mexico border. 120 Several federal agencies record information on bulk cash smuggling, including DEA (through the El Paso Intelligence Center‘s National Seizure System), ICE (through the Bulk Cash Smuggling Center), and the Department of the Treasury (through the Treasury Enforcement Communications System database). Because each of these databases is distinct from the others, ONDCP has recommended that increased information sharing between federal—as well as between federal, state, and local law enforcement—could aid in investigations of DTOs involved in bulk cash smuggling. Operation Firewall is an initiative to combat bulk cash smuggling, one of the methods that transnational criminal organizations use to move the proceeds from their criminal activities to fund future operations. ICE has found that as successful enforcement has made the transfer of illicit funds between banks and other financial institutions more difficult, criminal organizations are increasing their use of bulk cash smuggling. 121 Operation Firewall is a joint effort with CBP to target the full array of methods used to smuggle bulk cash, including commercial and private passenger vehicles, commercial airline shipments and passengers, and pedestrians crossing U.S. borders with Mexico and Canada.122

Securing the Border At the Ports of Entry As a response to the violence in Mexico, DHS announced a number of measures to ensure additional security. Among those measures was the deployment of seven additional dual-detection canine teams, for a total of 12 teams in California, Arizona, and Texas. Moreover, additional mobile x-ray units were deployed to Texas and Arizona, joining the seven previously deployed units along the Southwest border in Texas and California.123 In regards to Operation Stonegarden—grants to enhance cooperation and coordination among federal, state, local and tribal law enforcement agencies in a joint mission to secure the border—Secretary Napolitano waived the 50% cap on personnel and operational activity costs for local eligible jurisdictions along the border to provide additional resources where they are needed most. Also, CBP conducts the scanning of license plates along the Southwest border through automated license plate readers (LPR). As of April 2009, CBP operated 52 outbound LPR lanes at 16 Southwest border crossings. CBP claims to be expanding these outbound operations and intends to replace the existing LPRs to improve accuracy rates and enhance capability.124

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Although notable resources are intended for deployment to the Southwest border, DHS has stated that no personnel will be transferred to implement this initiative.125 Some Members of Congress have expressed concerns about resources (particularly manpower) being diverted from other areas of the border. Instead, DHS intends to deploy Mobile Response Teams for short operations along the Southwest border. According to a DHS press release: Mobile Response Teams, consisting of 25 CBP officers each, are available for special deployments along the Southwest border. Twelve additional MRT officers have already been deployed to Texas and Arizona field offices; 24 more are scheduled to be deployed to the California, Texas and Arizona field offices in early May. Combined with the four existing teams, these 36 officers will comprise eight additional teams for a total of 12.

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CBP must manage the border in such a way that the institution of enhanced security measures does not unduly restrict or delay the processing of legitimate travel and trade. Since the September 11, 2001, terrorist attacks, this tension has been most keenly felt on the inbound lanes of the land border, as CBP has taken numerous measures to enhance the security of the people and goods entering the United States. Less attention has been paid to people and goods leaving the country. The escalation of DTO-related violence in Mexico, and the concern that this violence might spill over in to the United States, has led for calls to enhance U.S. inspections of conveyances (cars, trucks, railcars) crossing the border from the United States into Mexico. The focus of these outbound inspections is stemming the flow of guns and money from the U.S. into Mexico. As reported above, CBP has taken several steps to enhance its outbound inspections. It is important to note, however, that every border crossing has two sides. In a public address in April 2009, Secretary of Homeland Security Napolitano was quoted as saying: The notion is that we will share the southbound inspections with Mexico, meaning that they will do some, we will do some. In other words, we‘re both not going to be everywhere all the time on southbound. Right now, Mexican customs or their equivalent doesn‘t do any southbound. So we‘re ... working with Mexico to change that dynamic, and share some responsibility along that border.126

Of concern to policy makers is achieving the appropriate balance of responsibility between the United States and Mexico for southbound inspections, and ensuring that the new outbound security measures do not unduly restrict the flow of legitimate trade and travel.

Between the Ports of Entry Over the past several years, DHS has adopted a new strategy for fighting drug smuggling, illegal immigration, and other illicit cross-border activities. This strategy—known as the Secure Border Initiative (SBI)—has sought to gain operational control over the Southwest border of the United States, with the eventual goal of gaining such control over all of the country‘s border regions. The purpose of such a strategy has essentially been to ―push the fight‖ against potential violators of the law to the ports of entry where screening and tracking resources are located. In order to achieve such a funneling effect, DHS had as of November 27, 2009, installed 642.2 miles of fence along the Southwest border, including 343.7 miles of

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pedestrian fence and 298.5 miles vehicular barriers known as ―vehicle fence.‖ These barriers are designed to consistently slow, delay, and be an obstacle to illegal cross-border activity. Additionally, CBP is pursuing a mix of personnel (there are currently more than 16,400 CBP agents between the ports of entry along the Southwest border), technology, infrastructure, and response assets known as SBInet that will serve as a ―virtual fence.‖ While the deployment of the physical barriers are planned for roughly 670 miles of the Southwest border, the eventual deployment of the virtual fence is intended to occur along the entire United States border. Despite the installation of these barriers, Border Patrol agents continue to be subject to attacks from the Mexico side of the border. 127 These attacks, however, have been ongoing for a number of years and do not appear to be linked to the recent feud between the DTOs.128 Although not confirmed by currently available research, officials for DHS have speculated that part of the violence that has erupted between Mexican drug trafficking organizations can be attributed to this strategy by DHS. These officials believe that the efforts to funnel smuggling and trafficking activities towards ports of entry have disrupted a number of the previous supply channels for such operations, thereby limiting the ability to conduct illegal cross-border activities. These speculations are to some degree supported by media reports that Mexican smugglers and traffickers have become more aggressive in their attempted efforts at corrupting CBP officers. Such factors, along with the SBI strategy and the large numbers of new hires being brought in as CBP officers have placed an increased pressure on the Southwest border points of entry.

Shifting/Enhancing Resources DHS announced resource shifts to augment specific border security efforts. The announced shifts included the doubling of ICE special agents to Border Enforcement Security Task Forces (BEST) from 95 to 190. Also, according to DHS, the 95 additional ICE investigators were to augment BEST task forces at the following locations: San Ysidro and Imperial Valley, CA; Phoenix and Tucson, AZ.; Deming and Las Cruces, NM; and El Paso, Laredo, and Rio Grande Valley, TX. ICE detailed 26 additional analysts to the Southwest border, thereby tripling the previous number. The ICE Attaché personnel in Mexico reportedly increased by 50% (from 24 to 36), to support the Mexican government, as well as domestic ICE offices, by pursuing investigations inside Mexico involving money laundering, narcotics or human trafficking, and weapons smuggling. Finally, DHS announced a quadrupling of the number of ICE Border Liaison Officers (BLOs) assigned along the Southwest border, from 10 officers to 40 officers.

Cross-Cutting Efforts National Southwest Border Counternarcotics Strategy129 The National Southwest Border Counternarcotics Strategy (SWBCS) is a companion strategy to complement the overarching National Drug Control Strategy and to place specific emphasis on drug control efforts in the SWB region. One of the aims of the National Drug Control strategy is to disrupt the trafficking of illicit narcotics as close to the source zone as possible. The SWBCS is specifically focused on those shipments that are not intercepted in

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the source or transit zones, and directs resources to the arrival zone—the SWB of the United States. The SWBCS is comprised of six strategic objectives that are incorporated into the overall strategic goal of reducing the flow of drugs, money, and weapons across the Southwest border. In order to accomplish this goal, the Strategy outlines major efforts in the areas of improving intelligence and information sharing, preventing smuggling at and between the ports of entry, utilizing air and marine assets, supporting investigations and prosecutions, countering financial crimes, combating the southbound flow of weapons into Mexico, advancing technology, and providing support to Mexico.

Southwest Border Initiative (SWBI) The Southwest Border Initiative (SWBI) is a multi-agency (DEA, ATF, FBI, U.S. Customs Service, and U.S. Attorneys) initiative targeting Mexican and Colombian-based DTOs. 130 Federal agencies target the communication systems of DTO command and control centers (in part, by conducting wiretaps) to identify all levels of the organizations. The SWBI, in operation since 1994, allows federal agencies to track the flow of drugs from Colombia or Mexico into the United States.

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Mérida and Direct Support to Mexico Congress has provided funding for the Mérida Initiative,131 a multi-year proposal for $1.4 billion in U.S. counterdrug and anticrime assistance to Mexico and Central America.132 With assistance largely in the form of equipment and training, goals of the Initiative include breaking the power and impunity of criminal organizations; assisting the Mexican and Central American governments in strengthening border, air, and maritime controls; improving the capacity of justice systems in the region; and curtailing gang activity in Mexico and Central America and diminishing the demand for drugs in the region.133 Enhancing Intelligence El Paso Intelligence Center (EPIC) EPIC was established in 1974 as an intelligence center to collect and disseminate information relating to drug, alien, and weapon smuggling in support of field enforcement entities throughout the region. Following 9/11, counterterrorism also became part of its mission. EPIC is jointly operated by the Drug Enforcement Administration (DEA) and U.S. Customs and Border Protection (CBP).134 Today, EPIC is a fully coordinated, multi-agency tactical intelligence center supported by databases and resources from member agencies. Its online query capability consists of 33 federal databases, six commercial databases, and its own internal database. EPIC operates a 24/7 watch program manned by special agents, investigative assistants and intelligence analysts to provide timely tactical intelligence to the field on request. Agencies represented at EPIC include ICE; U.S. Coast Guard; U.S. Secret Service; the Departments of Defense (DOD) and Interior; FBI; Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF); U.S. Marshals Service; Federal Aviation Administration, National Drug Intelligence Center; Internal Revenue Service; National Geospatial–Intelligence Agency;

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Joint Task Force–North; Joint Interagency Task Force–South; Texas Department of Public Safety; Texas Air National Guard; and the El Paso County Sheriff‘s Office.

DHS Office of Intelligence and Analysis (I&A)135 DHS is a member of the Intelligence Community (IC). Its I&A is responsible for collecting, analyzing, and disseminating information related to homeland security threats ―to the full spectrum of homeland security customers in the Department, at state, local, and tribal levels, in the private sector, and the IC.‖136 The Under Secretary for I&A is the Chief Intelligence Officer for the Department and manages the entire DHS Intelligence enterprise consisting of I&A and the six DHS operational components with intelligence offices—U.S. Customs and Border Protection, U.S. Immigration and Customs Enforcement, U.S. Citizenship and Immigration Services, Transportation Security Administration, U.S. Coast Guard, and U.S. Secret Service. To enhance its support to border security activities, I&A established an Integrated Border Intelligence Program (IBIP). Under IBIP, additional personnel and support infrastructure have been committed to support all of the Department‘s border security operations. The program is designed to link DHS intelligence resources, and those of state and local partners, with the IC in order to deliver actionable intelligence to front-line operators and to fuse national intelligence with law enforcement information. In order to enhance the intelligence component of the effort to stop the flow of illegal weapons into Mexico, Secretary Napolitano announced in March 2009 that DHS will triple the number of intelligence analysts at the Southwest border.137 An important initiative within the IBIP is the Homeland Intelligence Support Team (HIST). The first HIST team was deployed in 2007 to El Paso, TX. It consists of intelligence officers from I&A whose mission is to coordinate and facilitate the delivery of national intelligence and enhance information fusion to support DHS operational missions at the border. In this regard it serves as a bridge between the national and field levels and between I&A and the component intelligence staffs at the border. It can also push/pull information from state and local law enforcement officials. The HIST also helps provide context to I&A analysts on topics such as border violence. Its focus areas are alien smuggling, border violence, weapons trafficking, illicit finance, drug trafficking, and the nexus between crime and terrorism. Its location at the El Paso Intelligence Center (EPIC) gives the HIST staff immediate access to each of the DHS operational components plus 16 other federal, state, and local agencies. DHS announced several other efforts directed at curbing the drug-related violence in Mexico. One such effort is the intended bolstering of the Secure Communities (SC) biometric identification deployment. This effort would expand SC from the previous 23 counties in the Southwest border states of Arizona and Texas and make this capability available to an additional 26 Southwest border counties in Arizona, California, New Mexico, and Texas. CBP Border Field Intelligence Center (BORFIC) Originally established as the Border Patrol Field Intelligence Center in 2004 in El Paso, TX, BORFIC conducts all-source intelligence activities to support the border security mission of the BP and other DHS and CBP elements to predict, detect, deter, and interdict terrorists,

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terrorist weapons, and human traffickers and contraband smugglers entering the United States.138 BORFIC is responsible for supporting security efforts on both the northern and southern borders. It exchanges intelligence and law enforcement information with numerous federal, state, local, and tribal organizations agencies and actively participates in several interagency and bilateral groups. On the Southwest border, these include the El Paso Interagency Intelligence Working Group, consisting of EPIC, DOD‘s Joint Task Force-North, and the FBI; and the Bilateral Interdiction Working Group with Mexico. BORFIC shares law enforcement intelligence information with state and local fusion centers through the Homeland Security State and Local Intelligence Community of Interest (HS-SLIC) portal.139 Currently, BORFIC has four personnel assigned to EPIC who work in tandem with the Homeland Intelligence Support Team also located there. CBP plans to relocate BORFIC to EPIC to enhance coordination efforts.

CBP Air and Marine Operations Center (AMOC) Located in Riverside, CA, the AMOC is a 24/7, multi-agency coordination center that detects, sorts, and monitors air and marine tracks of interest140 across the nation‘s borders and maritime approaches. The AMOC is staffed with intelligence operations specialists who provide connectivity to DHS and other intelligence community agencies. It also has liaison officers assigned from the USCG, Federal Aviation Administration, DOD National Guard Bureau, and the Government of Mexico.141 The AMOC produces a comprehensive air surveillance radar picture from as many as 450 sensors, including an extensive network of military and civilian radars across the United States and Canada. It allows the AMOC to provide real-time data on suspicious or noncooperative aircraft and marine vessels to support interdiction operations as well as to other DHS intelligence and operations centers. In addition to aircraft and vessel location data, Detection Systems Specialists at the AMOC have access to numerous law enforcement and other databases that allow them to provide operational units with information regarding the flight plans, history, ownership, and registration of aircraft and vessels and criminal background information on pilots and vessel crew. ICE Field Intelligence Groups (FIG) The ICE Office of Investigations has 26 Field Offices that manage the investigative activities within their area of responsibility. Each office is supported by a co-located FIG consisting of an intelligence director or advisor and a staff of intelligence and operational personnel. FIG personnel identify and analyze criminal trends, threats, methods and systemic vulnerabilities related to ICE strategic priorities within their office‘s area. FIG intelligence reports, assessments, and other products primarily support the ICE leadership and field managers, but are also disseminated to other DHS, law enforcement, and IC member agencies. 142 FIG‘s at or near the Southwest border are those co-located with the ICE Office of Investigation Field Offices in Dallas, El Paso, Houston, and San Antonio in Texas; and Los Angeles and San Diego in California.

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ICE Border Violence Intelligence Cell (BVIC) The BVIC was established in January 2008 in order to provide intelligence support for ICE weapons smuggling investigations and government-wide efforts to combat violence along the United States-Mexico border.143 It is located at EPIC within the Crime-Terror Nexus Unit. The BVIC works closely with I&A‘s HIST and other partners at EPIC. As the level of violence along the U.S.-Mexican border intensified in the past two years, ICE has partnered with Mexican and other U.S. law enforcement agencies on three initiatives described below to enhance border security, disrupt transnational criminal organizations, and stop the illegal flow of firearms from the United States into Mexico. These are the Border Enforcement Security Task Forces (BEST), Armas Cruzadas, and Operation Firewall (described elsewhere in this chapter). The BVIC supports all three programs. At the BVIC, all-source intelligence is analyzed and operational leads are provided to the BEST task forces and ICE attaché offices. The BVIC also analyzes data from arrests and seizures by the BEST task forces and exchange intelligence with Mexican law enforcement agencies. In November 2008, the BVIC, in collaboration with CBP and DHS I&A, produced an Intelligence Report, United States Southbound Weapons Smuggling Assessment, which examined U.S. southbound weapon smuggling trends. This chapter was designed to support the BEST‘s and other operational components in planning and conducting outbound firearms smuggling operations. In December 2008, the BVIC also co-authored a strategic-level analysis for the ICE and DHS leadership on the same issue.

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Operation Black Flag In reaction to the escalation of drug-related violence along the U.S.-Mexican border, DEA initiated Operation Black Flag in April 2008.144 Collecting intelligence from law enforcement agencies and confidential sources on both sides of the border, the operation‘s main goal is to track and report actionable intelligence on the capability and likelihood of Mexican DTOs extending their violent activities across the border and onto American soil. Increasing Prosecutions As mentioned, multiple federal agencies are involved in investigating the Mexican DTOs. Often, these cases are investigated in OCDETF investigations. Figure A-1 illustrates the number of OCDETF cases referred to the United States Attorney Offices (USAOs) from various agencies in FY2008. Generally, over the past 10 years, the number of OCDETF cases filed with the U.S. Attorneys has decreased by about 25% from 3,332 in FY1999 to 2,491 in FY2008,145 as illustrated in Figure A-2. One possible explanation for the decline in OCDETF case filings is that U.S. law enforcement has not focused efforts on OCDETF cases, and therefore did not file as many cases with the USAOs. A second explanation may be that increasing enforcement has been effective in reducing the illegal activities of DTOs and money laundering organizations, thus leading to a decrease in the number of OCDETF cases referred to the USAOs.

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Source: CRS representation of data provided by USAO Congressional Affairs.

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Figure A- 1. OCDETF Cases Referred to the USAOs, by Federal Agency FY 2008

Source: CRS representation of data provided by USAO Congressional Affairs. Notes: Data represents the total number of OCDETF cases filed with the USAOs. This includes cases relating Mexican DTOs as well as other drug trafficking and money laundering organizations. Figure A-2. OCDETF Case Filings and Convictions FY1999-FY2008

The data on OCDETF cases do not, however, allow analysts to determine the proportion of cases focused on particular drug trafficking and money laundering organizations—such as Mexican DTOs. It is unclear whether the proportion of OCDETF cases related to Mexican DTOs has changed significantly throughout the past 10 years. If the proportion of OCDETF cases related to Mexican DTOs has remained constant, then the total number of OCDETF

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cases has decreased relative to FY1999. If this proportion has increased, however, this could suggest several things, including an increase in Mexican DTOs‘ illegal activities or an increase in administration prioritization of Mexican DTOs.

End Notes 1

See, for example, ―Congress Discusses Increasing Drug Violence in Mexico,‖ Voice of America, March 11, 2009. For more information on the drug-related violence in Mexico, see CRS Report R40582, Mexico’s Drug-Related Violence , by June S. Beittel. 3 See for example, U.S. Department of Homeland Security, ―Remarks by Secretary Napolitano at the Border Security Conference,‖ press release, August 11, 2009, http://www.dhs.gov/ynews/speeches /sp_1250028863008.shtm and Arthur H. Rotstein, ―Bersin: Mexican drug violence threat major concern,‖ The Associated Press, July 15, 2009, quoting Alan Bersin, the U.S. Department of Homeland Security Special Representative of Border Affairs. 4 The Mérida Initiative is a multi-year proposal for $1.4 billion in U.S. counterdrug and anticrime assistance to Mexico and Central America. The details of the Mérida Initiative will not be discussed in this chapter; for more information, please see CRS Report R40 135, Mérida Initiative for Mexico and Central America: Funding and Policy Issues, by Clare Ribando Seelke. 5 Drug Enforcement Administration, Statement of Joseph M. Arabit Special Agent in Charge, El Paso Division, Regarding ―Violence Along the Southwest Border‖ Before the House Appropriations Committee, Subcommittee on Commerce, Justice, Science and Related Agencies, March 24, 2009, http://www.usdoj.gov/dea/speeches/s032409.pdf. 6 The Organized Crime Drug Enforcement Task Forces (OCDETF) Program, for instance, has been operating since 1982 to combat major drug trafficking and money laundering organizations. For more information on the OCDETF Program, see http://www.justice. The trends in drug trafficking-related crime across the United States are currently unknown because federal law enforcement agencies do not systematically track and report drug trafficking related crimes. 7 For more information, see CRS Report R40732, Federal Domestic Illegal Drug Enforcement Efforts: Are They Working? by Celinda Franco. 8 In addition, the drug related violence in Mexico is also resulting from a struggle between the drug trafficking organizations and the Mexican government attempting to crack down on the DTOs. For more information, see Scott Stewart and Alex Posey, Mexico: The War with the Cartels in 2009, Stratfor Global Intelligence, November 9, 2009, http://www.stratfor.com/weekly/20091209_mexico_war 9 U.S. Department of Justice, National Drug Intelligence Center, National Drug Threat Assessment, 2008, Product No. 2007-Q0317-003, October 2007, p. v, http://www.usdoj.gov/ndic/pubs25/25921/25921p.pdf. Hereinafter, NDTA, 2008. 10 U.S. Department of Justice, National Drug Intelligence Center, National Drug Threat Assessment 2009, Product No. 2008-Q0317-005, December 2008, p.III, http://www.usdoj.gov/ndic/pubs31/31379/31379p.pdf. Hereinafter, NDTA, 2009. 11 Oriana Zill and Lowell Bergman, ―Do the Math: Why the Illegal Drug Business is Thriving,‖ PBS Frontline, http://www.pbs.org/wgbh/pages/frontline/shows/drugs 12 U.S. Central Intelligence Agency, World Fact Book, available at https://www.cia.gov/library/publications/theworldfactbook/index.html. 13 NSDUH is an annual survey of approximately 67,500 people, including residents of households, noninstitutionalized group quarters, and civilians living on military bases. The survey is administered by the Substance Abuse and Mental Health Services Administration of the U.S. Department of Health and Human Services and is available at http://oas.samhsa.gov/NSDUHlatest.htm. 14 According to the NSDUH, within the period 2002 - 2008, the annual percentage of illicit drug users in the 12 and older age group ranged from 7.9% to 8.3%. 15 Mexican DTOs distribute cocaine (produced primarily in Colombia), and they produce as well as distribute heroin, methamphetamine, and marijuana. 16 U.S. Department of State, Bureau for International Narcotics and Law Enforcement Affairs, 2009 International Narcotics Control Strategy Report (INCSR), vol. 1, March 2009, p. 414. 17 The NDTA indicates that ―[t]he relative threat posed by a specific drug requires a subjective analytic assessment based on many considerations, such as the cost of interdiction, seizure, and eradication; the number of individuals using or addicted to the drug; the level of availability in U.S. drug markets; the extent and organization of distribution groups; the level of violence associated with distribution and use of the drug; the

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level of property crime associated with use of the drug; and the level of involvement by international drug trafficking organizations (DTOs) and gangs.‖ NDTA, 2009, p. IV. 18 NDTA, 2009, p. 1. This threat is not based on the availability or current use of cocaine in the United States; marijuana, not cocaine, is the most commonly-seized drug along the Southwest Border (see Table 1), and the NSDUH indicated that marijuana was the most commonly used illegal drug. 19 Ibid., p. 9. 20 Ibid., p. 21. 21 Ibid., p. 26. 22 Ibid., p. 45. 23 The terms drug trafficking organization (DTO) and drug cartel are terms often used interchangeably. Cartel is one of the dominant terms used colloquially and in the press, but some experts disagree with using this term because ―cartel‖ often refers to price-setting groups and because it is not clear that the Mexican drug trafficking organizations are setting illicit drug prices. For the purpose of consistency, this chapter uses the term drug trafficking organization. For more information on the Mexican DTOs, see archived CRS Report RL34215, Mexico’s Drug Cartels, by Colleen W. Cook. For information on the current violence between the DTOs in Mexico, see CRS Report R40582, Mexico’s Drug- Related Violence, by June S. Beittel. 24 For more information on organized crime in the United States, see CRS Report R40525, Organized Crime in the United States: Trends and Issues for Congress, by Kristin M. Finklea. 25 Stratfor Global Intelligence, Mexican Drug Cartels: The Net Assessment, March 9, 2008, http://www.stratfor.com/ podcast/mexican_drug_cartels_net_assessment. 26 Stratfor Global Intelligence, Organized Crime in Mexico, March 11, 2008, http://www.stratfor.com/analysis/ organized_crime_mexico. 27 Ibid. Refer to the section in the report, ―Activities,‖ for more information on other illicit activities engaged in by the drug trafficking organizations. 28 As mentioned, Mexican DTOs distribute cocaine (produced in Colombia, Venezuela, and Brazil), and they produce as well as distribute heroin, methamphetamine, and marijuana. 29 For more information on gun trafficking on the Southwest border, see CRS Report R40733, Gun Trafficking and the Southwest Border, by Vivian S. Chu and William J. Krouse. 30 Stratfor Global Intelligence, Organized Crime in Mexico, March 11, 2008, http://www.stratfor.com/analysis/ organized_crime_mexico. See also archived CRS Report RL34215, Mexico’s Drug Cartels, by Colleen W. Cook. 31 NDTA, 2009., p. 45. 32 NDTA, 2009., p. 49. According to ONDCP data, the trafficking and distribution of cocaine generates about $3.9 billion, marijuana generates about $8.5 billion, and methamphetamine generates about $1 billion. Jane's, Security, Mexico, February 20, 2009. 33 Robert T. Greenbaum and George E. Tita, ―The Impact of Violence Surges on Neighbourhood Business Activity,‖ Urban Studies, vol. 41, no. 13 (December 2004), pp. 2495-2514. 34 Brady McCombs and Tim Steller, ―Drug Violence Spillover More Hype Than Reality: Southern Arizona Lawmen Discount Threat of Cartel Warfare Crossing Border,‖ Arizona Daily Star, April 26, 2009, Tucson Region. 35 Drug Enforcement Administration, Statement of Joseph M. Arabit Special Agent in Charge, El Paso Division, Regarding ―Violence Along the Southwest Border‖ Before the House Appropriations Committee, Subcommittee on Commerce, Justice, Science and Related Agencies, March 24, 2009, http://www.usdoj.gov/dea/speeches/s032409.pdf. 36 NDTA, 2009, p. 46. 37 Wholesale refers to the sale of goods to retailers for resale to consumers rather than selling goods directly to consumers. Retailers, on the other hand, sell goods directly to consumers. Wholesalers tend to sell larger quantities of goods to retailers, who then sell smaller quantities to consumers. 38 NDTA, 2009., pp. 43-46. See also, National Gang Intelligence Center and National Drug Intelligence Center, National Gang Threat Assessment, 2009, Product No. 2009-M0335-001, January 2009, http://www.fbi.gov/ publications/ngta2009.pdf. 39 Fred Burton and Ben West, The Barrio Azteca Trial and the Prison Gang-Cartel Interface, Stratfor Global Intelligence, November 19, 2008, http://www.stratfor.com/weekly/200811 19_barrio_azteca_trial_and_ prison_gang_cartel_interface. 40 For more information, see Tom Diaz, ―Barrio Azteca—Border Boys Linked to Mexican Drug Trafficking Organizations—Part Three,‖ April 17, 2009, http://tomdiaz.wordpress.com/2009/04/17/barrioazteca%E2%80%93border-bad-boys. See also the U.S. Department of Justice website at http://www .usdoj.gov/criminal/gangunit/gangs 41 While drug trafficking organizations may not be directly involved in alien or gun smuggling, they may tax the smugglers who wish to use the established drug trafficking routes. Further, the NDIC has indicated that drug trafficking organizations may engage in violent confrontations with the smuggling organizations, as the drug traffickers fear that the smugglers‘ use of their routes may lead to the traffickers‘ apprehension. See National

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Drug Intelligence Center, Office of National Drug Control Policy, Arizona High Intensity Drug Trafficking Area: Drug Market Analysis 2009, Product No. 2009-R0813-002, March 2009, p.14, http://www.justice 42 Jane's, Security, Mexico, February 20, 2009. Also, Stratfor Global Intelligence, Mexican Drug Cartels: The Net Assessment, March 9, 2008, http://www.stratfor.com/podcast/mexican_drug_cartels_net_assessment 43 Sam Quinones, ―Phoenix, Kidnap-For-Ransom Capital,‖ Los Angeles Times, February 12, 2009. See also, National Drug Intelligence Center, Office of National Drug Control Policy, Arizona High Intensity Drug Trafficking Area: Drug Market Analysis 2009, Product No. 2009-R08 13-002, March 2009, http://www.justice 32762p.pdf. 44 Ibid., p. 18. 45 Brady McCombs and Tim Steller, ―Drug violence spillover more hype than reality: Southern Arizona lawmen discount threat of cartel warfare crossing border,‖ Arizona Daily Star, April 26, 2009, Tucson Region. 46 Jeffrey A. Roth, ―Psychoactive Substances and Violence,‖ National Institute of Justice (Research in Brief Series), February 1994 (Washington, D.C.: U.S. Department of Justice). 47 Negotiated settlements do occur, although they often feature intimidation. 48 See for example, Peter Andreas and Joel Wallman, ―Illicit market and violence: what is the relationship?,‖ Crime, Law, and Social Change, vol. 52, no. 3 (September 2009), pp. 225-230, and Peter Reuter, ―Systemic violence in drug markets,‖ Crime, Law and Social Change, vol. 52, no. 3 (September 2009), pp. 275-285. 49 For more information on this violence in Mexico, see CRS Report R40582, Mexico’s Drug-Related Violence , by June S. Beittel. 50 A Mexican study of the cost-effectiveness of using the military in the drug war (in Ciudad Juarez) has found that there is a high cost with little success, as murders, kidnappings, extortions, and other crimes continue to increase. See http://narcosphere.narconews.com/notebook/kristin-bricker/2009/11/numbers-dont-add-mexicosdrug-war. 51 Drug Enforcement Administration, Statement of Joseph M. Arabit Special Agent in Charge, El Paso Division, Regarding ―Violence Along the Southwest Border‖ Before the House Appropriations Committee, Subcommittee on Commerce, Justice, Science and Related Agencies, March 24, 2009, http://www.usdoj.gov /dea/speeches/s032409.pdf. 52 18 U.S.C. § 2331 defines terrorism as ―activities that (A) involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or of any State; (B) appear to be intended—(i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and (C) occur primarily outside the territorial jurisdiction of the United States, or transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to intimidate or coerce, or the locale in which their perpetrators operate or seek asylum.‖ 53 Stratfor Global Intelligence, Mexican Drug Cartels: Government Progress and Growing Violence, December 11, 2008, pp. 15-16, http://web 54 CRS Report R40582, Mexico’s Drug-Related Violence , by June S. Beittel. 55 NDTA, 2009., pp. 43-46. 56 See, for example, Randal C. Archibold, ―Mexican Drug Cartel Violence Spills Over, Alarming U.S.,‖ The New York Times, March 22, 2009. 57 Brady McCombs and Tim Steller, ―Drug Violence Spillover More Hype Than Reality: Southern Arizona lawmen discount threat of cartel warfare crossing border,‖ Arizona Daily Star, April 26, 2009, Tucson Region. 58 See testimony by David Shirk, Director, Trans-Border Institute, University of San Diego, before the U.S. Congress, House Committee on Appropriations, Subcommittee on Commerce, Justice, Science, and Related Agencies, Federal Law Enforcement Response to US-Mexico Border Violence, 111th Cong., 1st sess., March 24, 2009. 59 CRS Report R40582, Mexico’s Drug-Related Violence , by June S. Beittel. See also Stratfor Global Intelligence, Mexican Drug Cartels: Government Progress and Growing Violence, December 11, 2008, http://web.stratfor.com/ images/MEXICAN%20Cartels%202008.pdf. 60 See, for example, Randal C. Archibold, ―Mexican Drug Cartel Violence Spills Over, Alarming U.S.,‖ The New York Times, March 22, 2009. 61 Arthur H. Rotstein, ―Bersin: Mexican Drug Violence Threat Major Concern,‖ The Associated Press, July 15, 2009, quoting Alan Bersin the Department of Homeland Security Special Representative of Border Affairs. Further, this type of violence would be consistent with the interagency definition of spillover violence. 62 Figures are drawn from the Trans-Border Institute (TBI), ―Drug Violence in Mexico: Data and Analysis from 200 1- 2009,‖ January 2010, citing data gathered by Reforma newspaper. For a description as to why Reforma data are used instead of other sources, see p. 2-3 of the TBI report, available at http://www.justiceinmexico.org/resources drug_violence.pdf. There have been varying reports as to the actual number of drug related deaths. For instance, the Washington Post also tracks this number, and that data is available at http://www.washingtonpost.com/wp-dyn/content/ graphic/2009/04/01/GR200904010353 1.html.

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Randal C. Archibold, ―Mexican Drug Cartel Violence Spills Over, Alarming U.S.,‖ The New York Times, March 22, 2009. The media has also reported 17 drug-related deaths in El Paso in 2008. See Sara Miller Llana, ―Crossfire Towns: Eye-To-Eye Across the US-Mexican Border, Two Communities Confront Drugs, Guns, and Misconceptions,‖ The Christian Science Monitor, June 21, 2009. 64 Drug Enforcement Administration, Statement of Joseph M. Arabit Special Agent in Charge, El Paso Division, Regarding ―Violence Along the Southwest Border‖ Before the House Appropriations Committee, Subcommittee on Commerce, Justice, Science and Related Agencies, March 24, 2009, http://www.usdoj.gov/dea/speeches/s032409.pdf. 65 Stratfor Global Intelligence, Mexican Drug Cartels: Government Progress and Growing Violence, December 11, 2008, pp. 15-16, http://web 66 See CRS Report R40582, Mexico’s Drug-Related Violence , by June S. Beittel. 67 See, for example, U.S. Congress, House Committee on Homeland Security, Subcommittee on Border, Maritime, and Global Counterterrorism, Combating Border Violence: The Role of Interagency Coordination in Investigations, 111th Cong., 1st sess., July 16, 2009 and U.S. Congress, Senate Committee on Homeland Security and Governmental Affairs, Southern Border Violence, 111th Cong., 1st sess., March 25, 2009. 68 See for example, Rob Margetta, ―Lawmakers Want to Know Who Takes the Lead in Battling Border Violence,‖ CQ Today Online News, March 10, 2009. 69 Straw purchases occur when guns are purchased from licensed gun dealers by eligible persons and then knowingly transferred to prohibited persons. Straw purchases are illegal under U.S. law (18 U.S.C. § 924(a)(1)(A)). 70 Paul J. Goldstein, ―The Drugs/Violence Nexus: A Tripartite Conceptual Framework,‖ Journal of Drug Issues, vol. 14 (1985), pp. 493-506. 71 Gabriel Arana, ―There‘s No Drug Crime Wave at the Border, Just a lot of Media Hype,‖ The Nation, May 29, 2009. 72 The UCR is most commonly referenced when discussing crime rates, and for the purpose of this chapter, we present and analyze crime rates as reported by the UCR program. For more information on how crime in the United States is measured and on the UCR program, see archived CRS Report RL34309, How Crime in the United States Is Measured, by Nathan James and Logan Rishard Council. See also http://www.fbi.gov/ucr/ucr.htm. 73 The FBI also collects data on the number of arrests made for 21 other offenses, known as Part II offenses. Part II offenses include Other Assaults; Forgery and Counterfeiting; Fraud, Embezzlement; Stolen Property: Buying, Receiving, or Possessing; Vandalism; Weapons: Carrying, Possessing, etc.; Prostitution and Commercialized Vice; Sex Offenses; Drug Abuse Violations; Gambling; Offenses Against the Family and Children; Driving Under the Influence; Liquor Laws; Drunkenness; Disorderly Conduct; Vagrancy; All Other Offenses; Suspicion; Curfew and Loitering Laws (Persons under 18); and Runaways (Persons under 18). 74 For more information, see archived CRS Report RL34309, How Crime in the United States Is Measured, by Nathan James and Logan Rishard Council. 75 This does not exclude the possibility that policy makers may be equally concerned with drug trafficking-related property crimes. However, this chapter focuses on violent crimes. For information on national trends in both violent and property crime rates, see CRS Report R40812, Federal Crime Control Issues in the 111th Congress, by Kristin M. Finklea. 76 The Office of Management and Budget (OMB) defines MSAs as having at least one urbanized area of 50,000 or more in population, plus adjacent territory that has a high degree of social and economic integration with the core as measured by commuting ties. For more information, see Executive Office of the President, Office of Management and Budget, Update of Statistical Area Definitions and Guidance on Their Uses, OMB Bulletin No. 10-02, December 1, 2009, http://www.whitehouse.gov/omb/assets 77 NDTA, 2009., p. 45. 78 See CRS Report R40582, Mexico’s Drug-Related Violence , by June S. Beittel. 79 These MSAs include the cities of San Diego, CA; El Centro, CA; Yuma, AZ; Las Cruces, NM; El Paso, TX; Laredo, TX; McAllen, TX; and Brownsville, TX—all which were identified by the NDIC as having the presence of Mexican drug trafficking organizations. 80 In 2005, the national violent crime rate was 469 and the average violent crime rate across the selected border MSAs was 465.9. 81 Samuel Logan, ―Mexican Drug Cartel Recruitment of Teenagers in the USA,‖ Mexidata.Info, December 14, 2009, http://mexidata.info/id2495.html. 82 Deborah Tedford, ―Mexico Violence Not Spilling Into Texas Border Cities,‖ National Public Radio, March 24, 2009, http://www.npr.org/templates/story/story.php?storyId=102256207. 83 For more information on the drug-related violence in Mexico, see CRS Report R40582, Mexico’s Drug-Related Violence , by June S. Beittel. 84 Ibid. 85 U.S. Department of Homeland Security, ―Fact Sheet: Southwest Border: The Way Ahead,‖ press release, April 15, 2009, http://www.dhs.gov/ynews/releases/pr_1239821496723.shtm.

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Drug Enforcement Administration, Statement of Joseph M. Arabit Special Agent in Charge, El Paso Division, Regarding ―Violence Along the Southwest Border‖ Before the House Appropriations Committee, Subcommittee on Commerce, Justice, Science and Related Agencies, March 24, 2009, http://www.usdoj.gov/dea/speeches/s032409.pdf. 87 For more information on the Mérida Initiative, see CRS Report R40135, Mérida Initiative for Mexico and Central America: Funding and Policy Issues, by Clare Ribando Seelke. 88 Drug Enforcement Administration, Statement of Joseph M. Arabit Special Agent in Charge, El Paso Division, Regarding ―Violence Along the Southwest Border‖ Before the House Appropriations Committee, Subcommittee on Commerce, Justice, Science and Related Agencies, March 24, 2009, http://www .usdoj.gov/dea/speeches/s032409.pdf. 89 U.S. Department of Justice, FY2010 Budget and Performance Summary, Interagency Crime and Drug Enforcement (ICDE), March 2009, p. 126, http://www.usdoj.gov/jmd/2010summary/pdf/icde-budsummary.pdf. 90 ICE, BEST Fact Sheet, Dec. 3, 2008. 91 See also, CRS Report R40733, Gun Trafficking and the Southwest Border, by Vivian S. Chu and William J. Krouse 92 U.S. Department of Justice, Statement of David Ogden, Deputy Attorney General, before the United States Senate Committee on Homeland Security and Governmental Affairs, ―Southern Border Violence: Homeland Security Threats, Vulnerabilities, and Responsibilities,‖ March 25, 2009, p.11. 93 Straw purchases occur when guns are purchased from licensed gun dealers by eligible persons and then knowingly transferred to prohibited persons. Straw purchases are illegal under U.S. law (18 U.S.C. § 924(a)(1)(A)). 94 U.S. Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives, Project Gunrunner: The Southwest Border Initiative, ATF P 3317.6, March 2009, available at http://www.atf.go v/publications/download/p/atfp-33 17-6.pdf. 95 Greg Ridgeway, Glenn L. Pierce, and Anthony A. Braga, et al., Strategies for Disrupting Illegal Firearms Markets: A Case Study of Los Angeles, RAND Corporation, 2008, p. 1. 96 For example, in the 109th Congress, the House Judiciary Crime subcommittee held two oversight hearings examining ATF firearms enforcement operations at guns shows in Richmond, Virginia, in 2005. ATF agents reportedly provided state and local law enforcement officers with confidential information from background check forms (ATF Form 4473s), so that those officers could perform residency checks on persons who had otherwise legally purchased firearms at those gun shows. Questions were also raised as to whether ATF agents had profiled gun purchasers at those gun shows on the basis of race, ethnicity, and gender. See U.S. Congress, House of Representatives, Committee on the Judiciary, Subcommittee on Crime, Terrorism, and Homeland Security, Oversight Hearing on the Bureau of Alcohol, Tobacco, Firearms, and Explosives (BATFE) Parts I & II: Gun Show Enforcement, February 15 and 28, 2006. Also see Department of Justice, Office of the Inspector General, The Bureau of Alcohol, Tobacco, Firearms and Explosives‘ Investigative Operations at Gun Shows, I-2007-007, June 2007. 97 18 U.S.C. § 923(g)(1)(B). 98 ATF briefing provided to CRS on May 5, 2008. 99 Ibid. 100 18 U.S.C. § 921 et seq. 101 18 U.S.C. § 922(a)(6); 18 U.S.C. § 924 (a)(2). 102 18 U.S.C. § 2. 103 18 U.S.C. § 554.1. Depending on the type of firearm, it is also a violation of either the Arms Export Control Act (AECA; 22 U.S.C. § 2778 et seq.) or the Export Administration Act of 1979 (EAA; 50 U.S.C. app. §§ 240 12420) to transport a handgun, rifle, or shotgun across the border into Mexico without proper authorization of the U.S. government. 104 18 U.S.C. § 922(a)(5). 105 See Brady Center to Prevent Gun Violence website on state gun laws, http://www.stategunlaws.org/. 106 ATF briefing provided to CRS on May 5, 2008. 107 Ibid. 108 Bureau of Alcohol, Tobacco, Firearms and Explosives, Office of Public Affairs, ―ATF Expands Efforts to Combat Illegal Flow of Firearms to Mexico,‖ January 16, 2008. 109 ATF briefing provided to CRS on April 16, 2009. 110 Ibid. 111 Ibid. 112 Statement of William Hoover, Assistant Director for Field Operations, Bureau of Alcohol, Tobacco, Firearms and Explosives, before the Subcommittee on the Western Hemisphere, Committee on Foreign Affairs, House of Representatives, concerning ―U.S. Obligations under the Mérida Initiative,‖ February 7, 2008. 113 CRS conversations with Bureau of Alcohol, Tobacco, Firearms and Explosives, Office of Legislative Affairs, May 14, 2008.

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ICE, Armas Cruzadas Fact Sheet, Nov. 12, 2008. U.S. Congress, Senate Committee on Judiciary, Subcommittee on Crime and Drugs, Law Enforcement Responses to Mexican Drug Cartels, Statement of Kumar C. Kibble, Deputy Director, ICE Office of Investigations, 111th Cong., Mar. 17, 2009. 116 NDT A, 2009., p. 49. 117 The Department of the Treasury defines the BPME as ―a large-scale money laundering system used to launder proceeds of narcotic sales in the United States by Latin American drug cartels by facilitating swaps of dollars in the U.S. for pesos in Colombia through the sale of dollars to Latin America businessmen seeking to buy U.S. goods to export,‖ http://www.fincen.gov/statutes 118 See the FinCEN HIFCA website at http://www.fincen.gov/law_enforcement/hifca/index.html for more information. 119 31 U.S.C. § 5341. 120 Office of National Drug Control Strategy, National Southwest Border Counternarcotics Strategy, June 2009, p. 25, http://www.whitehousedrugpolicy.gov/publications/swb_counternarcotics_strategy09/ swb_ counternarcotics_strategy09.pdf. 121 U.S. Congress, House Appropriations Committee, Subcommittee on Homeland Security, Border Security Enforcement Task Force, Statement of Marcy Forman, Director, ICE Office of Investigations, 111th Cong., Mar. 10, 2009. 122 ICE, Operation Firewall Fact Sheet, Feb 6, 2008. 123 Department of Homeland Security, ―Fact Sheet: Southwest Border: The Way Ahead,‖ press release, April 15, 2009, http://www.dhs.gov/ynews/releases/pr_1239821496723.shtm. 124 Ibid. 125 Ibid. 126 Department of Homeland Security, ―Remarks by Secretary Napolitano at the Border Trade Alliance International Conference,‖ press release, April 21, 2009, http://www.dhs.gov/ynews/speeches/sp_1240361190144.shtm. 127 Based on CRS discussions with CBP and Border Patrol officials in El Paso, TX, December 3, 2008. 128 Ibid. 129 Office of National Drug Control Policy, National Southwest Border Counternarcotics Strategy, June 2009, http://www.whitehousedrugpolicy.gov/publications/swb_counternarcotics_strategy09/ swb_counternarcotics_strategy09.pdf. Herein after, SWBCS, 2009. The SWBCS is implemented by the Director of National Drug Control Policy, in conjunction with the DHS Office of Counternarcotics Enforcement as well as the DOJ Office of the Deputy Attorney General. 130 For more information on the SWBI, see the Drug Enforcement Administration, Southwest Border Initiative, http://www.usdoj.gov/dea/programs/sbi.htm. 131 CRS Report R40135, Mérida Initiative for Mexico and Central America: Funding and Policy Issues, by Clare Ribando Seelke. 132 This includes the countries of Belize, Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua and Panama. 133 CRS Report R40135, Mérida Initiative for Mexico and Central America: Funding and Policy Issues, by Clare Ribando Seelke. 134 See DEA, El Paso Intelligence Center. http://www.usdoj.gov/dea/programs/epic.htm 135 For more information on the DHS intelligence enterprise, see CRS Report R40602, The Department of Homeland Security Intelligence Enterprise: Operational Overview and Oversight Challenges for Congress, by Mark A. Randol. 136 DHS, Office of Intelligence and Analysis. http://www.dhs.gov/xabout/structure/gc_1220886590914.shtm. 137 White House Press Release, ―Administration Officials Announce US Mexico Border Security Policy: A Comprehensive Response and Commitment,‖ March 24, 2009. http://www.whitehouse.gov/the_press_office/ Administration-Officials-Announce-US-Mexico-Border-Security-Policy-A-Comprehensive-Response-andCommitment/ 138 CBP BORFIC, Briefing for CRS, Dec. 3, 2008. 139 The Homeland Security State and Local Intelligence Community of Interest (HS-SLIC) allows intelligence analysts in 45 states, the District of Columbia and seven federal agencies to share sensitive homeland security intelligence information and analysis on a daily basis. It is hosted on a portal of the Homeland Security Information Network (HSIN). 140 Among the reasons for an aircraft or vessel to be considered a track of interest is that it is unidentified, uncooperative (i.e., not responding to air traffic control or law enforcement direction), or otherwise behaving suspiciously. 141 U.S. Government Accountability Office, Opportunities Exist to Enhance Collaboration at 24/7 Operations Centers Staffed by Multiple DHS Agencies, 07-89, Oct. 2006, pp. 13-14. 142 This summary of FIG mission and functions is from Ibid., p. 1. 143 ICE, B VIC Fact Sheet, June 2008. 115

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144

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Drug Enforcement Administration, Statement of Joseph M. Arabit Special Agent in Charge, El Paso Division, Regarding ―Violence Along the Southwest Border‖ Before the House Appropriations Committee, Subcommittee on Commerce, Justice, Science and Related Agencies, March 24, 2009, http://www.usdoj.gov/dea/speeches/s032409.pdf. 145 Data provided to CRS by USAO Congressional Affairs.

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Chapter 4

GUN TRAFFICKING AND THE SOUTHWEST BORDER Vivian S. Chu and William J. Krouse

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SUMMARY According to the Department of Justice, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) is the lead federal agency responsible for stopping the illegal flow of firearms, or gun trafficking, from the United States to Mexico. ATF has developed a nationwide strategy to reduce firearms trafficking and violent crime by seeking to prevent convicted felons, drug traffickers, and juvenile gang members from acquiring firearms from gun traffickers. These criminals often acquire firearms from persons who are otherwise not prohibited from possessing firearms, or by buying firearms from corrupt federal firearms licensees (FFLs) who sell firearms off-the-books in an attempt to escape federal regulation. ATF also reports that Mexican drug trafficking organizations (DTOs) are increasingly sending enforcers across the border to hire surrogates (straw purchasers) who buy several ―military-style‖ firearms at a time from FFLs. The DTOs also reportedly favor pistols chambered to accommodate comparatively large cartridges that are capable of piercing through armor vests usually worn by law enforcement officers, and magazines capable of holding more than 10 rounds of ammunition. Less frequently, but no less troubling to law enforcement, the DTOs have also sought .50 caliber sniper rifles that are capable of penetrating bullet-proof glass and lightly armored vehicles. ATF reports that there are around 6,700 FFLs in the United States operating in the Southwest border region of Texas, New Mexico, Arizona, and California. By inspecting the firearms transfer records that FFLs are required by law to maintain, ATF investigators are often able to trace crime guns from their domestic manufacturer or importer to the first retail dealer that sold those firearms to persons in the general public, generating vital leads in criminal investigations. In addition, by inspecting those records, ATF investigators sometimes discover evidence of illegal, off-the-books transfers, straw purchases, and other patterns of suspicious behavior. During FY2006 and FY2007, ATF dedicated approximately 100 special agents (SAs) and 25 industry operations investigators (IOIs) to a Southwest border initiative known as ―Project Gunrunner‖ to disrupt the illegal flow of guns from the United States into

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Mexico. By the end of FY2008, ATF had deployed 146 SAs and 68 IOIs to the Southwest border to bolster that initiative at a conservatively estimated cost of $32.2 million. The Omnibus Appropriations Act of 2009 included an increase of at least $5 million for Project Gunrunner, and the FY2009 Supplemental Appropriations Act includes an additional $14 million for this initiative. Both the House-passed and Senate-reported FY2010 Commerce, Justice, Science, and Related Agencies appropriations bill (H.R. 2847) would provide ATF with an $18 million increase for Project Gunrunner, an amount equal to the President‘s request. U.S. firearms laws currently govern the possession and transfer of firearms and provide penalties for the violation of such laws. ―Gun trafficking,‖ although not defined by statute, essentially includes the movement or diversion of firearms from legal to illegal markets. This chapter includes legal analyses of three ATF-investigated, Southwest border gun trafficking cases to illustrate the federal statutes that are typically violated as part of wider gun trafficking schemes. The report also examines anti-gun trafficking proposals introduced in the 110th Congress. So far, no similar proposals have been introduced in the 111th Congress. The report concludes with possible policy questions for Congress regarding the magnitude of Southwest border gun trafficking, the use and significance of ATF crime gun trace data, the possible ratification of an Inter-American Gun Trafficking Convention (CIFTA), and the adequacy of the federal statutes designed to deter and reduce illegal gun trafficking.

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OVERVIEW OF GUN TRAFFICKING FROM THE UNITED STATES TO MEXICO In the U.S. Department of Justice‘s National Drug Threat Assessment 2009, Mexican drug trafficking organizations (DTOs) were identified as the greatest organized crime and drug trafficking threat to the United States worldwide.1 With increased U.S. efforts to interdict narcotic smugglers in the Caribbean and Florida in the late 1980s and 1990s, the Colombian drug cartels began subcontracting with Mexican DTOs to smuggle cocaine into the United States across the Southwest border. By the late 1990s, Mexican DTOs had pushed aside the Colombians and gained greater control and market share of cocaine trafficking into the United States. Today, Mexico is a major supplier to U.S. markets of heroin, methamphetamine, and marijuana and the major transit country for cocaine smuggled into the United States. The Department of State estimates that as much as 90% of the cocaine entering the United States now transits through Mexico.2 Since taking office in December 2006, Mexican President Felipe Calderón has made combating drug cartels3 and drug violence a top priority of his administration. President Calderón has deployed some Mexican army contingents and federal police to cartelcontrolled areas throughout Mexico to reestablish government control.4 In response, drug cartel enforcers reportedly are buying semiautomatic versions of AK-47 and AR-15 style assault rifles, and other military-style firearms, including .50 caliber sniper rifles in the United States. With those rifles and other armaments,5 the cartels are achieving parity in terms of firepower with the Mexican army and law enforcement. President Calderón has called upon the United States to increase its efforts to suppress the flow of U.S. firearms into Mexico. According to the U.S. Department of Justice, drug-related murders in Mexico doubled from

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2006 to 2007, and more than doubled again in 2008 to 6,200 murders.6 Of the murders in 2008, nearly 10% involved law enforcement officers or military personnel killed in the line of duty.7 More than 23,000 firearms were recovered by Mexican authorities and submitted for tracing to the U.S. Department of Justice (DOJ), Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) from FY2004 through FY2008.8 Although only a fraction of recovered firearms are submitted for tracing,9 approximately 87% of traced firearms were determined to have originated in the United States.10 Law enforcement authorities in both nations are confronting the Southwest border paradigm: drugs and illegal migrants flow north, guns and money flow south.11 The Mexican government estimates that 2,000 firearms are smuggled across the Southwest border daily.12 Although firearms trafficking is not the only reason violent crime is increasing in Mexico, reducing the flow of illegal firearms from the United States to Mexico would arguably reduce crime rates in Mexico and improve public safety. Mexican gun laws are generally much stricter than U.S. gun laws.13 The Department of State‘s Bureau of Consular Affairs ―Tips for Travelers to Mexico‖ warns U.S. gun owners not to take firearms to Mexico unless they have a permit from the Mexican Embassy, as several dozen U.S. citizens have been incarcerated in Mexico on weapons-related charges, including some who inadvertently carried a U.S.-licensed weapon into Mexico. 14 In its publication, Guide To The Interstate Transportation of Firearms, the National Rifle Association (NRA) also warns that firearms are ―severely restricted‖ in Mexico, but offers information on how firearms can be taken legally to Mexico for sporting purposes.15 In many ways, the gun trafficking issue between Mexico and the United States is analogous to the ―crime gun‖ trafficking issue that has arisen among states within the United States.16 Some states have more liberal gun laws, and others, stricter gun laws. Oftentimes, the latter view the former as the source of many crime guns and, hence, gun-related crimes. 17 It is noteworthy that the cross- border flow of illegal firearms has also been an issue for Canada,18 because Canadian gun laws are also generally much stricter than U.S. gun laws. 19 Indeed, both Mexico and Canada, in addition to a minority of U.S. states, require the registration of most privately held firearms, but there is no U.S. federal registry of firearms.20 Illegal gun trafficking from the United States to Mexico reportedly ranges from frequent small- scale smuggling of one or two handguns per border crossing to less frequent, largerscale conspiracies to smuggle large shipments of military armaments.21 The Department of Homeland Security‘s Customs and Border Protection (CBP) and the Immigration and Customs Enforcement (ICE) and one of its predecessor agencies, the U.S. Customs Service, have interdicted large weapons shipments on occasion. It has been reported that firearms are frequently diverted from legal commercial channels to illegal channels in the United States and then smuggled into Mexico.22 Although cross-border firearms trafficking is illegal and a high-risk endeavor, the reward is great, with profit margins that in the past have typically ranged between 300% and 500%.23

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U.S. GUN CONTROL STATUTES AND AN INTER-AMERICAN, ANTIGUN TRAFFICKING CONVENTION Four federal statutes govern U.S. commerce of firearms domestically and internationally. Many states supplement these federal statutes and have firearms laws of their own that are more strict. For example, some states require permits to obtain firearms and impose a waiting period for firearm transfers. Domestic commerce and importations into the United States are generally regulated under the National Firearms Act of 1934 (NFA) and the Gun Control Act of 1968 (GCA). The exportation of firearms from the United States is regulated by the Arms Export Control Act of 1976 and, to a lesser extent, the Export Administration Regulations (EAR). Federal firearms laws are primarily enforced by the ATF. In addition, the U.S. government is a signatory to an inter-American, anti-gun trafficking convention.

National Firearms Act of 1934 (NFA)24

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The NFA was enacted to make it difficult to obtain certain types of firearms perceived to be especially lethal, most notably machine guns and short-barreled shotguns. This act also regulates firearms, other than pistols or revolvers, that can be concealed on a person (e.g., pen, cane, and belt buckle guns), and destructive devices (grenades, mines, bazookas, rockets, and missiles). Under the NFA, all aspects of the manufacture and distribution of such weapons are taxed. The statute also compels manufacturers and buyers alike to disclose, through registration with the Attorney General, the production and distribution of covered firearms and destructive devices. For the most part, the NFA is administered by the ATF.

Gun Control Act of 1968 (GCA)25 Under the GCA, as amended, the stated purpose of federal firearms regulation is to assist federal, state, and local law enforcement in the ongoing effort to reduce crime and violence, while not placing undue or unnecessary burdens on law-abiding citizens in regard to the lawful acquisition, possession, or use of firearms for hunting, trapshooting, target shooting, personal protection, or any other lawful activity. The GCA requires all persons manufacturing, importing, or selling firearms as a business to be federally licensed; prohibits the interstate mail-order sale of all firearms; prohibits interstate transfer of handguns between non-licensed persons; sets forth categories of persons to whom firearms or ammunition may not be sold (such as persons under a specified age or with criminal records); requires the Attorney General to authorize the importation of sporting firearms; requires that dealers maintain records of all commercial gun sales; and establishes special penalties for the use of a firearm in the perpetration of a federal drug trafficking offense or crime of violence. As amended by the Brady Handgun Violence Prevention Act in 1993,26 the GCA requires background checks to be completed for all non-licensed persons seeking to obtain firearms from federal firearms licensees. While the GCA is generally administered by the ATF, Brady background checks are administered by the Federal Bureau of Investigation (FBI). Under the GCA, background checks are not required for private, intrastate transactions between non-

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licensed persons who are not ―engaged in the business‖ as a firearms dealer.27 Such transactions and other matters such as possession, registration, and the issuance of licenses to firearm owners may be covered by state laws or local ordinances, however. Regarding possession under federal law, the GCA prohibits certain categories of persons from possessing or purchasing firearms or ammunition. Those categories generally cover: (1) persons convicted in any court of a crime punishable by imprisonment for a term exceeding one year; (2) fugitives from justice; (3) users or addicts of drugs; (4) persons adjudicated as a mental defectives or committed to mental institutions; (5) illegal immigrants and nonimmigrants; (6) persons dishonorably discharged from the U.S. Armed Forces; (7) persons who have renounced their U.S. citizenship; (8) persons restrained under a court-order from harassing, stalking, or threatening an intimate partner or child of such intimate partner; and (9) persons convicted of misdemeanor domestic violence.28 The GCA does not distinguish between citizens and legal permanent residents (legal immigrants); both are eligible to receive, possess, and transfer firearms and ammunition as long as they are not in one of the categories of prohibited persons. As shown above, among prohibited categories are illegal immigrants and nonimmigrants (with exceptions for the latter). Illegal immigrants are those noncitizens (aliens) who have either entered the United States without inspection or have violated the terms of their nonimmigrant visas or entry by overstaying or accepting unauthorized employment. Illegal immigrants are prohibited from possessing firearms with no exceptions. Nonimmigrants are admitted for temporary stays – sometimes for several years. In general, nonimmigrants are not eligible to purchase and take possession of firearms or ammunition in the United States.29 There are limited exceptions, however, for certain nonimmigrants who:

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have resided in a state for 90 days that they intend to make their home, in which case they may purchase handguns in their state of residence, or purchase long guns (rifles or shotguns) in any state;

and establish that they are either: 



 

official representatives of a foreign government who are accredited to the United States government or the nonimmigrant‘s government mission to an international organization that is headquartered in the United States and possession of a firearm is necessary to their official capacity; officials of foreign governments or distinguished visitors who have been designated by the State Department and possession of a firearm is necessary to their official capacity; foreign law enforcement officers of a friendly foreign government entering the United States on law enforcement business; or visitors admitted to the United States for lawful hunting or sporting purposes or are in possession of a valid hunting license or permit lawfully issued in the United States.30

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Arms Export Control Act of 1976 (AECA)31 Section 38 of the Arms Export Control Act (AECA) authorizes the President to control the export and import of ―defense articles‖ and ―defense services;‖ to designate articles and services that are to be considered as such; and to issue regulations governing the import and export of these items. The United States Munitions List (USML) includes items that are designated by the President as defense articles and defense services.32 Weapons on the USML include non-automatic and semiautomatic firearms to caliber .50 inclusive (12.7mm); fully automatic firearms to .50 inclusive (12.7mm); firearms or other weapons having special military application regardless of caliber; combat shotguns; silencers and similar items for such weapons; riflescopes manufactured to military specifications; barrels, cylinders, receivers or complete breech mechanisms for such weapons; and components and parts for the above-listed articles.33 The U.S. Department of State implements controls over the export and temporary import of items on the USML under the International Traffic in Arms Regulations.34 The exportation of items that are not contained on the USML may either be subject to the exclusive control of other federal agencies or to export controls administered by Department of Commerce.35 The AECA imposes strict criminal and civil penalties for those persons who violate its provisions.

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Export Administration Regulations (EAR)36 The Department of Commerce (DOC), through its Bureau of Industry and Security (BIS), implements controls on the export of goods subject to DOC jurisdiction in the EAR.37 DOC export controls were originally authorized in the Export Administration Act of 1979, but upon the expiration of the act in 2001, DOC export controls have been maintained under an executive order issued under the International Emergency Economic Powers Act (IEEPA).38 IEEPA grants the President broad authorities to control exports from the U.S. as well as to regulate other international economic transactions by persons subject to U.S. jurisdiction, provided that he first declare a national emergency due to ―an unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States.‖39 Firearms are controlled in the Commerce Control List (CCL) under Category 0, ―Nuclear Materials, Facilities and Equipment and Miscellaneous Items,‖ and are listed under Subgroup A, ―Systems, Equipment and Components.‖ The following items are covered: 





(0A984) Shotgun, barrel length 18 inches (45.72 cm) inches or over; buckshot shotgun shells, except equipment used exclusively to treat or tranquilize animals, and except arms designed solely for signal, flare, or saluting use; and parts, n.e.s. [not elsewhere specified]; (0A985) Discharge type arms (for example, stun guns, shock batons, electric cattle prods, immobilization guns and projectiles) except equipment used exclusively to treat or tranquilize animals, and except arms designed, solely for signal, flare, or saluting use; and parts, n.e.s.; (0A986) Shotgun shells, except buckshot shotgun shells, and parts, n.e.s.; and

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(0A987) Optical sighting devices for firearms (including shotguns controlled by 0A984), and parts, n.e.s.

In general, these items are regulated for crime control reasons,40 implementation of certain U.N. embargoes, and the Inter-American Convention Against the Illicit Manufacturing of and Trafficking in Firearms, Ammunition, Explosives, and Other Related Materials (CIFTA, a Spanish acronym41; discussed below), and in some cases, anti-terrorism purposes. The EAR provides information as to the specific licensing requirements for each item, including requirements for exports to particular countries. License exceptions are not available for these items. Like the AECA, the EAR imposes strict criminal and civil penalties on those persons who violate its provisions. BIS maintains a licensing system for the export of shotguns and related items to all Member countries of the Organization of American States (OAS), including Mexico and Canada, an action based on the OAS Model Regulations for the Control of the International Movement of Firearms, Their Parts, and Components and Munitions (OAS Model Regulations), which were developed to aid OAS Member countries in implementing CIFTA.42 Although the Senate has not ratified the Treaty, the United States maintains the above-described export regulations, which are aimed at furthering the goals of CIFTA.43

OAS Convention on Illicit Firearms Trafficking (CIFTA)

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On November 13, 1997, the OAS adopted the Inter-American Convention Against the Illicit Manufacturing of and Trafficking in Firearms, Ammunition, Explosives, and Other Related Materials (CIFTA). CIFTA is a multilateral treaty designed to prevent, combat, and eradicate illegal transnational trafficking in firearms, ammunition, and explosives. Under CIFTA, a state would be committed to:      

establishing as criminal offenses the illicit manufacturing and trafficking of firearms; setting up and maintaining a system of licenses and authorizations for export, import, and transit of firearms; marking firearms at the time of manufacture, and when they are imported; sharing information needed by law enforcement when investigating arms trafficking offenses; strengthening controls at export points; and ensuring that law enforcement personnel receive adequate training.44

CIFTA was signed by the United States and 28 other OAS member states on November 14, 1997,45 and it went into effect on July 1, 1998. As of February 5, 2009, twenty-nine OAS Member states have ratified the Convention, while four other OAS Member states (including the United States) are signatories but have yet to ratify the treaty.46 President Clinton transmitted the Convention to the Senate on June 9, 1998, with his recommendation ―that the Senate give early and favorable consideration to the Convention, and that it give its advice and consent to ratification.‖47 The Senate has not voted on the treaty.

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ATF ENFORCEMENT OF U.S. GUN LAWS According to DOJ, ATF is the lead federal agency responsible for stopping the illegal flow of firearms, or gun trafficking, from the United States to Mexico, given the bureau‘s statutory mission and authority.48 ATF has developed a nationwide strategy to reduce firearms trafficking and violent crime by preventing convicted felons, drug traffickers, and juvenile gang members from acquiring firearms from gun traffickers. These criminals often acquire firearms from a person who otherwise is not prohibited to possess a firearms through straw purchases or by buying a firearm from a corrupt dealer who sells firearms off-the-books in an attempt to escape federal regulation. Although there is no statutory definition for ―gun trafficking‖ in the GCA, it essentially entails the movement or diversion of firearms from legal to illegal markets.49 Unlike other forms of contraband, almost all illegal firearms used criminally in the United States were diverted at some point from legal channels of commerce.50 ATF works to reduce firearmsrelated crime with two approaches, industry regulation and criminal investigation.

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ATF Compliance Inspections of Licensed Gun Dealers ATF regulates the U.S. firearms industry by inspecting federal firearms licensees (FFLs), or licensed gun dealers, to monitor their compliance with the GCA and NFA, and to prevent the diversion of firearms from legal to illegal channels of commerce. Despite its crimefighting mission, ATF‘s business relationships with the firearms industry and larger gunowning community have been a perennial source of tension, which from time-to-time has been the subject of congressional oversight.51 Nevertheless, under current law, ATF Special Agents (SAs)52 and Industry Operations Investigators (IOIs)53 are authorized to inspect or examine the inventory and records of an FFL without search warrants under three scenarios:54  



in the course of a reasonable inquiry during the course of a criminal investigation of a person or persons other than the FFL; to ensure compliance with the record keeping requirements of the GCA – not more than once during any twelve-month period, or at any time with respect to records relating to a firearm involved in a criminal investigation that is traced to the licensee; or when such an inspection or examination is required for determining the disposition of one or more firearms in the course of a criminal investigation.

By inspecting the firearms transfer records that FFLs are required by law to maintain, ATF SAs and IOIs are able to trace crime guns from their domestic manufacturer or importer to the first retail dealer that sold those firearms to persons in the general public, generating vital leads in homicide and other criminal investigations. In addition, by inspecting those records, ATF investigators sometimes discover evidence of corrupt FFLs dealing in firearms ―off the books,‖ straw purchases, and other patterns of illegal behavior.

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In July 2004, the DOJ Office of Inspector General (OIG) reported on ATF inspections of FFLs. Among other things, the OIG reported that ATF inspected the operations of 4.5% of the 104,000 FFLs in FY2002.55 Since then, according to ATF, 10,106 firearms compliance inspections were conducted in FY2007, covering about 9.3% of the nearly 109,000 FFLs in that fiscal year;56 and 11,169 firearms compliance inspections were conducted in FY2008, covering nearly 10% of the 111,600 FFLs in that fiscal year.57 In its FY2010 budget submission to Congress, ATF has reported that there are about 113,000 FFLs nationwide, but nearly half of them (53,472) are licensed collectors.58 Those collectors are not authorized to be ―engaged in the business‖ of dealing firearms,59 but they are authorized to engage in limited interstate firearms transfers of ―curios and relics‖60 without engaging the services of an FFL to facilitate such transfers and related background checks.

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Straw Purchases and the Ant Run A ―straw purchase‖ occurs when a person, who is otherwise eligible to purchase a firearm, purchases a firearm from a federally licensed dealer for another person, who is either prohibited from possessing a firearm or does not want a paper trail linking him to the purchased firearm. Routine, small-scale smuggling of guns across the border often involves a series of straw purchases, during which guns are purchased from FFLs in border states and then sold to a middle man, who then smuggles the guns across the border. Repeated trips across the border of one to three guns, referred to in border parlance as the ant (hormiga) run, is a common way firearms are smuggled into Mexico.61 In the United States, straw purchases are illegal under the GCA.62 When a person buys a firearm from an FFL, the buyer and the FFL are required to fill out ATF Form 4473. The FFL is required to verify the purchaser‘s name, address, date of birth, and other information by examining a state-issued piece of identification, most often a driver‘s license. If the purchaser or dealer falsifies any information on the Form 4473, it is a federal offense punishable by no more than 10 years‘ imprisonment and/or a fine.63 It is also illegal for the gun trafficker who sponsored the straw purchase, because it is a federal offense for any person to aid, abet, counsel, command, or solicit a criminal act;64 or engage in a conspiracy to defraud the United States. It is also illegal to smuggle firearms out of the United States.65

Multiple Handgun Sales Reports In 1986, as part of the Firearms Owners‘ Protection Act,66 Congress amended the GCA to require FFLs to report to the Attorney General (AG) whenever they transferred more than one handgun to any nonlicensee within five consecutive business days.67 In 1993, as part of the Brady Handgun Violence Prevention Act,68 Congress amended the GCA to require that FFLs also forward this information to the state police or to the local law enforcement agency that has jurisdiction in the area where the transfer occurred. However, except for information pertaining to persons prohibited from possessing firearms, federal law prohibits state or local law enforcement agencies from disclosing those records to any person or entity, and requires

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those records be destroyed within 20 days of receipt so that such records cannot be used as a registry of firearms or firearms owners. At the end of every six-month period, the state or local law enforcement agency is required to certify to the AG that the record nondisclosure and destruction requirements were complied with. These provisions were enacted because when multiple handguns are purchased in states with less strict firearm laws and then sold in states with stricter firearm laws, this is often an indicator of interstate firearms trafficking, that is the diversion of firearms from legal to illegal markets.

Gun Shows and Private Firearm Transfers Private, intrastate firearm transfers are legal in some states at gun shows and flea markets. A person who is not ―engaged in the business‖ of dealing firearms may transfer firearms to another person as long as he does not do so knowingly to a prohibited person, and as long as he does not knowingly transfer a handgun to a person who is not a resident of the state in which the transfer occurs.69 It is notable that firearms acquired through private transfers, particularly multiple private transfers, are much more difficult to trace. Consequently, there is likely to be a premium for such firearms in illegal markets on both sides of the border, as there would also be for some stolen firearms, because there are no paper trails for these firearms. Southwest border states in which private transfers at gun shows are legal include Texas, New Mexico, Arizona, and California, although gun shows and all private firearm transfers are more strictly regulated in California.70

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Semiautomatic Assault Weapons Certain semiautomatic firearms that are often, but not always, based on military designs are very popular with Mexican drug traffickers.71 Depending on their configuration, some of these firearms formerly qualified by definition as ―semiautomatic assault weapons‖ under an expired provision of federal law. In 1994, Congress banned for 10 years the possession, transfer, or further domestic manufacture of semiautomatic assault weapons (SAWs) and large capacity ammunition feeding devices (LCAFDs) that hold more than 10 rounds that were not legally owned or available prior to the date of enactment (September 13, 1994). The SAW-LCAFD ban expired on September 13, 2004. The SAW ban statute classified a semiautomatic rifle as an assault weapon if it was able to accept a detachable magazine and included two or more of the following five characteristics: (1) a folding or telescoping stock, (2) a pistol grip, (3) a bayonet mount, (4) a muzzle flash suppressor or threaded barrel capable of accepting such a suppressor, or (5) a grenade launcher.72 There were similar definitions for pistols and shotguns that were classified as semiautomatic assault weapons.73 Semiautomatic assault weapons that were legally owned prior to the ban were not restricted and remained available for transfer under applicable federal and state laws. Opponents of the ban argue that the statutorily defined characteristics of a semiautomatic assault weapon were largely cosmetic, and that these weapons were potentially no more lethal than other semiautomatic firearms that were designed to accept a detachable magazine and

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were equal or superior in terms of ballistics and other performance characteristics. Proponents of the ban argue that semiautomatic military-style firearms, particularly those capable of accepting large capacity ammunition feeding devices, have no place in the civilian gun stock. During and following World War II, assault rifles were developed to provide a lighter infantry weapon that could fire more rounds, more rapidly. To increase capacity of fire, detachable, self- feeding magazines were developed. These rifles were usually designed to be fired in fully automatic mode, meaning that once the trigger is pulled, the weapon continues to fire rapidly until all the rounds in the magazine are expended, or the trigger is released. Often these rifles were also designed with a ―select fire‖ feature that allowed them to be fired in short bursts (e.g., three rounds per pull of the trigger), or in semiautomatic mode (i.e., one round per pull of the trigger), as well as in fully automatic mode. Semiautomatic firearms by comparison, including semiautomatic assault weapons, fire one round per pull of the trigger. Following the 1994 Semiautomatic Assault Weapons Ban, manufacturers changed the design of many firearms so that post-ban models did not include the requisite number of characteristics that would have qualified those firearms as ―semiautomatic assault weapons.‖ These measures arguably undercut the ban, as post-ban models included the two hallmarks of an ―assault rifle,‖ the detachable magazine and pistol grip.

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Fully Automatic Machineguns In the United States, fully automatic machine guns are strictly regulated under the NFA, which levies taxes on all aspects of the manufacture, importation, and distribution of such firearms. It is a felony to receive, possess, or transfer an unregistered NFA firearm.74 Such offenses are punishable by a fine of up to $250,000, imprisonment for up to 10 years, and forfeiture of the firearm and any vessel, vehicle, or aircraft used to conceal or convey the firearm.75 It is a federal offense to convert a semiautomatic firearm to ―full-auto‖ without proper authorization from the Attorney General. Parts kits to convert semiautomatic weapons to fully automatic are available on the U.S. civilian gun market, but these kits are considered machine guns in most instances and are also strictly regulated. In other instances, however, the individual parts in these kits may not be regulated. 76

Project Gunrunner: ATF Efforts to Suppress Southwest Border Gun Trafficking ATF has increased its efforts in recent years to suppress illegal gun trafficking across the Southwest border. As part of these efforts, ATF inspects FFLs to monitor their compliance with U.S. gun laws, and to prevent the diversion of firearms from legal to illegal channels of commerce. ATF reports that there are around 6,700 FFLs in the United States operating in the Southwest border region of Texas, New Mexico, Arizona, and California.77 ATF also reports that Mexican DTOs are increasingly sending enforcers across the border to hire surrogates (straw purchasers) who buy several ―military-style‖ firearms at a time from FFLs. The DTOs also reportedly favor pistols chambered to accommodate comparatively large cartridges and magazines that are capable of piercing through armor vests typically worn by law

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enforcement officers. Less frequently, but no less troubling to law enforcement, the DTOs have also sought .50 caliber sniper rifles.

Funding for Gunrunner78 During FY2006 and FY2007, ATF dedicated approximately 100 special agents and 25 industry operations investigators to a Southwest border initiative known as ―Project Gunrunner‖ to disrupt the illegal flow of guns from the United States into Mexico. In FY2007, ATF agents investigated 187 firearms trafficking cases and recommended 465 defendants for prosecution.79 By the end of FY2008, ATF had deployed 146 special agents and 68 industry operations investigators to the Southwest border to bolster that initiative at a conservatively estimated cost of $32.2 million.80 For FY2009, the Administration‘s budget request for ATF included a single increase of $948,000 to fund 12 industry operations investigator positions to bolster efforts already underway as part of Gunrunner.81 In the American Recovery and Reinvestment Act of 2009, Congress has provided ATF with $10 million to ramp up Gunrunner and $30 million to assist local law enforcement with counter-narcotics efforts.82 In the Omnibus Appropriations Act, 2009 (P.L. 111-8), Congress has provided ATF with a FY2009 budget of $1 .054 billion, including another $5 million for Gunrunner.83 In addition, in the Supplemental Appropriations Act, 2009 (P.L. 111-32), Congress appropriated $14 million for ATF. This amount includes (1) $4 million to upgrade and share ballistic imaging technology with the Government of Mexico, and (2) $6 million for other ongoing efforts focused on stemming illegal gun trafficking to Mexico under Project Gunrunner.84 The ATF FY2010 budget request85 includes $18 million and 92 permanent positions (including 34 agents) to support Project Gunrunner. 86 The House-passed FY2010 Commerce, Justice, Science, and Related Agencies (CJS) appropriations bill (H.R. 2847) would provide ATF with $1.1 06 billion, including the requested $18 million increase for Gunrunner. According to House report language, such an increase would bring total funding for Southwest border firearms trafficking to $59.9 million, but this amount includes one-time, stimulus funding of $10 million provided in the American Recovery and Reinvestment Act of 2009 for FY2008.87 The Senate-reported CJS appropriations bill (also H.R. 2847) would provide ATF with $1.121 billion for ATF, including the requested amount for Gunrunner. According to Senate report language, the Senate committee recommendation would bring total funding for Southwest border firearms trafficking to $61 million.88 ATF Firearms Tracing for Mexican Authorities ATF also maintains a foreign attaché in Mexico City to administer an Electronic Trace Submission System (ETSS), also known as the eTrace program, for Mexican law enforcement authorities. Although several sets of trace data have been released by ATF, the Government Accountability Office (GAO) has provided the most comprehensive analysis of ATF trace data. Nevertheless, trace data reported to CRS by ATF is also discussed below, as each set of trace data provides distinct insights into Southwest border firearms trafficking.

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ATF Briefing for CRS, May 18, 2008 From FY2005 through FY2007, ATF traced just over 11,700 firearms recovered by Mexican authorities. Although only a fraction of recovered firearms were submitted for tracing, approximately 90% of those firearms were found to have originated in the United States.89 Of those traced firearms, nearly 75% were reported to be handguns and 25% long guns. At that time there was no public information about the number of those handguns and long guns that were possibly ―semiautomatic assault weapons.‖ However, 25 machine guns were reportedly confiscated, of which six were traced back to U.S. military inventories.90 In addition, reports indicate that in at least 10 instances, Mexican authorities recovered U.S. manufactured 66 millimeter anti-tank weapons from Mexican DTOs.91 Caution should be exercised when drawing conclusions from ATF crime gun trace data. Although it is valid to say that 90% of traced firearms originated in the United States, it would be invalid to conclude that 90% of all guns used in crime in Mexico originated in the United States. Crime gun trace data are useful measurements of crime gun trends; however, the issues of consistent, random, and unbiased data collection have not been adequately addressed through comprehensive tracing and other controls. Hence, it is often not possible to test for statistical significance. Nevertheless, even though a statistically valid percent estimate of US-sourced firearms cannot be made based on trace data, criminal investigations have documented that there is great demand for certain firearms that are available in normal (nonmilitary) commercial channels in the United States and that those firearms have been illegally trafficked to Mexico in large numbers. ATF Briefing for CRS, April 16, 2009 In January 2008, ATF announced that e-Trace technology would be deployed to nine additional U.S. consulates in Mexico (Merida, Juarez, Monterrey, Nogales, Hermosillo, Guadalajara, Tijuana, Matamoros, and Nueva Laredo).92 The number of traces performed by ATF for Mexican authorities for FY2008 increased markedly from previous years. During FY2008, ATF reportedly traced 7,743 firearms recovered by Mexican authorities and, of those firearms:   

63.5% were made in the United States; 29.5% were made outside of the United States, but subsequently imported; and 7% were made outside of the United States and there was no indication that they had been imported into the United States before turning up in Mexico.93

Some of those traces were instrumental in developing investigative leads in homicide and gun trafficking cases.94 As described below, however, GAO has reported a different number of total traces for FY2008 (7,200), and for more years, FY2004 through FY2008, than was previously reported by ATF to CRS.

GAO Report on Firearms Trafficking and Mexico In June 2009, GAO released a report on firearms trafficking and U.S. efforts to combat the flow of illegal firearms to Mexico that included an analysis of ATF trace data for FY2004 through FY2008.95 GAO reported that 23,159 firearms were submitted by Mexican authorities to the ATF for tracing during those years.96 Of those firearms, 20,060 or 8 6.6%

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were successfully traced back to the United States.97 For the last three years (FY2006 through FY2008), over 90% of firearms recovered in Mexico and traced by ATF were found to have come from the United States.98 Of those firearms, 68% were manufactured in the United States and 19% were manufactured abroad and imported into the United States.99 About 70% of traced firearms were found to have come from Texas (39%), California (20%), and Arizona (10%). It is notable, however, that only a fraction of the firearms recovered by Mexican authorities have been traced. In FY2008, for example, information on about 7,200 of the nearly 30,000 firearms recovered by the Mexican Attorney General‘s office were submitted to ATF for tracing, because of bureaucratic obstacles and lack of resources.100 Notwithstanding such limitations, about 25% of firearms recovered in Mexico in FY2008 and traced back to the United States were semiautomatic variants of the AK-47 and AR- 15 rifles according to GAO.101 From FY2004 through FY2008, 70 machine guns were submitted for tracing, or .30% of the total number of firearms submissions (23,159), and one of these machineguns was traced back to the Mexican government.102 While GAO did not report how many of these machine guns were traced back to the U.S. military inventories, it was reported that over these years 160 firearms of all types, or .70% of the total, had been traced back to those inventories. Nevertheless, according to U.S. officials interviewed by GAO, ―there have not been any indications of significant trafficking in firearms from U.S. military personnel or U.S. military arsenals.‖103 GAO recommended that the U.S. Attorney General direct the ATF Director to regularly update ATF‘s reporting on aggregate firearms trafficking data and trends, and that the U.S. Attorney General and Secretary of Homeland Security ensure the systematic gathering and reporting of data related to results of efforts to combat firearms trafficking, including related firearms seizures, investigations and prosecutions.104

Merida and Appropriations Authorizations for ATF In the 110th Congress, the House passed H.R. 6028, the Mérida Initiative to Combat Illicit Narcotics and Reduce Organized Crime Authorization Act of 2008 on June 10, 2008.105 This bill would have authorized a total of $73.5 million over three years, FY2008-FY2010, to increase the number of ATF positions dedicated to Project Gunrunner ($45 million) and assign ATF agents to Mexico ($28.5 million). The Senate, however, took no action on this bill. Senator Jeff Bingaman introduced the Southwest Border Violence Reduction Act of 2008 (S. 2867), a bill that also included authorizations for increased ATF resources. Representatives Henry Cuellar and Ciro Rodriguez introduced similar bills (H.R. 5863 and H.R. 5869). In the 111th Congress, Senator Bingaman and Representative Rodriguez have reintroduced their Southwest Border Violence Reduction bills (S. 205/H.R. 495). Representative Rodriguez has also introduced the Border Reinforcement and Violence Reduction Act of 2009 (H.R. 1448), a bill that would authorize the appropriations of $15 million for each year, FY20 10 and FY20 11, for Project Gunrunner. In addition, Representative Sheila Jackson Lee introduced the Border Security, Cooperation, and Act Now Drug Prevention Act (H.R. 1900), a bill that would authorize the Attorney General to deploy additional federal agents, including ATF agents, to states in the event that a governor should declare an ―international border security emergency.‖

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PROSECUTION OF FIREARMS TRAFFICKING CASES AND RELATED STATUTES Currently, U.S. firearm laws govern the possession and transfer of firearms and create penalties for the violation of such laws. However, as will be illustrated below, because there are no laws that specifically punish firearms trafficking or conspiracy to traffic firearms, law enforcement and prosecutors must work with existing federal statutes to tackle illegal gun trafficking. The following are examples from the southwest border region that are demonstrative of the kinds of gun trafficking cases being prosecuted, and the federal statutes that are often implicated in such cases.106 These particular examples come from the Southern District of Texas, though other U.S. Attorney Offices such as the U.S. Attorney‘s Office for the District of Arizona and the Southern District of California handle similar cases that involve firearms trafficking.107 Overall, from these cases, we can see that evidence from long investigations generally leads to the conclusion that persons are engaged in firearms trafficking. In these instances, defendants are often prosecuted and convicted under provisions of statutes like the GCA that make it unlawful for certain persons to be in possession of firearms; govern the transaction process of obtaining firearms (e.g., straw purchases); and contain penalties for the use of a firearm in a crime of violence or drug trafficking crime, or penalties for knowingly or fraudulently smuggling goods that would be contrary to U.S. law and regulation.

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McAllen, Texas—Possession and Receiving of Illegal Firearms In February 2008, the U.S. Attorney‘s Office for the Southern District of Texas (USAOSDTex) released information that four men had been arrested by ATF agents in connection with a 10- month long investigation that fell under ATF‘s Project Gunrunner.108 Collectively, the defendants were charged with 26 counts of being in violation of federal firearms statutes. From the GCA, the statutes at issue in the indictment included: 

 

18 U.S.C. § § 924(c)(1 )(B)(i)-(ii), which imposes not more than 30 years‘ imprisonment if the firearm possessed by the person—who is convicted under the firearm statute—is a short-barreled rifle, short-barreled shotgun, machinegun, destructive device, or that such a firearm has a silencer or muffler; 18 U.S.C. § 922(o), which makes it unlawful for any person to transfer or be in possession of a machinegun; and 18 U.S.C. § 922(g)(1), which makes it unlawful for any person, who has been convicted in any court of a crime punishable by more than one year of imprisonment, ―to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.‖

These offenses are punishable by a fine and/or not more than 10 years‘ imprisonment.109 Statutes from the NFA that were at issue in this case included (1) 26 U.S.C. § 5861(d), which makes it unlawful for any person to receive or possess a firearm that is not registered to him

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in the National Firearms Registration and Transfer Record; and (2) 26 U.S.C. § 586 1(e), which makes it unlawful to transfer a firearm in violation of the requirements of the National Firearms Act. These offenses are punishable by a fine of not more than $10,000 and/or imprisonment of not more than 10 years.110

Brownsville, Texas—Conspiracy to Make False Statements and Straw Purchases

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In October 2008, the USAO-SDTex announced that one defendant, who had already pleaded guilty to charges against him, was sentenced to prison for trafficking in firearms.111 The defendant pleaded guilty to conspiracy to make false statements in firearms transactions. This defendant paid four other persons to make firearms purchases on his behalf (a.k.a., ―straw purchases‖). While the judge concluded that the defendant was the organizer in this case and engaged in trafficking firearms to Mexico, this lead defendant was prosecuted under two provisions, which together made up the charge against him. They were: (1) 18 U.S.C. § 371, which makes it an offense to engage in a conspiracy to commit any offense or defraud the United States, and (2)18 U.S.C. § 924(a)(1)(A), which makes it unlawful for a person to ―knowingly make any false statement or representation with respect to the information required ... to be kept in the records of a person licensed under this chapter.‖ Each of these offenses carries a penalty of not more than five years‘ imprisonment and/or a fine. In this case, the defendant, who organized these transactions, was sentenced to 46 months in prison to be followed by a three year term of supervised release. The four other co-defendants, who made the purchases on behalf of the lead defendant, were each prosecuted and sentenced under 18 U.S.C. § 924(a)(1)(A) for making false statements on the forms that are required to be filled out in connection with a firearms purchase. The sentences of these four codefendants range from probation and home confinement to time in federal prison.112

Victoria, Texas—Smuggling of Firearms In December 2008, the USAO-SDTex along with the ATF announced that one individual, as a result of an investigation through Project Gunrunner, pleaded guilty to eight counts of various federal firearms statutes.113 According to the USAO‘s release, the individual had purchased more than 500 firearms over the last several years and smuggled them into Mexico for resale. The ATF ‘s investigation revealed that the individual would purchase specific firearms for customers in Mexico by placing orders with numerous firearm dealers throughout Texas, and listing himself as the ―actual buyer.‖ Additionally, the individual would file a Texas tax exemption form indicating the firearms were for resale in order to avoid payment of sales taxes on his purchase. This individual would then smuggle the firearms, via a compartment in the motor home he used, to make deliveries to various locations in central Mexico.114 The firearms statutes implicated in this case of firearms trafficking to Mexico were: (1) 18 U.S.C. § 924(a)(1 )(A) and 18 U.S.C. § 924(a)(2), each of which provides a fine and/or not more than 5 or 10 years‘ imprisonment, respectively, to those who knowingly make a false

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statement or representation with respect to information required or in connection with the sale of a firearm from a licensed dealer; (2) 18 U.S.C. § 554, which carries a penalty of not more than 10 years in prison and/or a fine if a person ―fraudulently or knowingly exports ... or attempts to export ... from the United States any merchandise, article, or object contrary to any law or regulation of the United States, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of such merchandise ... prior to [its] exportation knowing [it] to be intended for exportation contrary to any law or regulation of the United States‖;115 (3) 18 U.S.C. § 924(b), which imposes a fine and/or imprisonment for not more than 10 years on any person who ―ships, transports, or receives a firearm or ammunition in interstate or foreign commerce‖ and who either has ―intent to commit therewith an offense punishable by imprisonment for a term exceeding one year,‖ or has ―knowledge or reasonable cause to believe that an offense punishable by imprisonment for a term exceeding one year is to be committed therewith‖; and (4) 18 U.S.C. § 924(a)(1)(D), which imposes a fine and/or imprisonment of not more than five years for any other willful violation of the provisions (in this case 18 U.S.C. § 922(a)(1)(A)-dealing in firearms without a license). All of these provisions carry a maximum fine of $250,000 and a maximum of three years of supervised release following completion of the sentence imposed.

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U.S. LAW ENFORCEMENT CHALLENGES AND SOUTHWEST BORDER GUN TRAFFICKING It is important to first note the subtle difference between trafficking and smuggling as it relates to firearms. Generally, trafficking occurs when a commercial item is diverted out of the lawful chain of commerce into illegal markets for unlawful purposes whereas smuggling, arguably a subset of trafficking, occurs when an item, legal or illegal, is imported or exported in violation of the law.116 It is worth noting that under current law there is a specific provision in the GCA that makes it illegal for any person to smuggle firearms into the United States, intending to engage in or promote conduct that violates state or federal drug laws, or that constitutes a crime of violence. Doing so is punishable by not more than 10 years‘ imprisonment and/or fine.117 However, there is no corresponding provision that specifically prohibits smuggling firearms out of the United States for the purposes of drug trafficking and related violent crime, even though laws like the AECA and EAR regulate the exportation of firearms. Instead, those caught smuggling firearms out of the United States are typically charged under a general smuggling provision as seen in the case that occurred in Victoria, Texas. Persons intending to smuggle trafficked firearms across the border often carry only a small number of firearms at a time under the guise that those firearms are their personal property. Moreover, if those persons are not otherwise prohibited from possessing a firearm, it may be extremely difficult to establish a criminal offense until they actually cross the border. Consequently, one of the challenges for investigators and prosecutors is that trafficking often involves a smaller quantity of guns so traffickers can avoid detection of their illicit activities or, if caught with a small quantity of guns, have a more believable claim that the guns in their possession are personal firearms. These circumstances arguably underscore

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the need for the ATF to follow up trafficking leads as expeditiously as possible in order to prevent wider trafficking schemes from expanding and proliferating. The examples highlighted from the U.S. Attorney‘s Office illustrate that because there are no laws specifically devoted to targeting wider firearms trafficking schemes, investigators and prosecutors work with criminal provisions in the GCA and NFA to charge gun traffickers with multiple violations. In many cases, gun traffickers are prosecuted under various provisions of these statutes; such provisions include prohibitions against dealing firearms without a federal license,118 or federally licensed dealers dealing off the books.119 It is also unlawful for any person ―to sell or otherwise dispose‖ of a firearm to another they ―know or have reasonable cause to believe‖ is a person who is prohibited from possessing firearms under federal law.120 Likewise, there are provisions that make it unlawful to make false statements on the forms necessary to complete a firearms transaction with an FFL.121 Thus, persons who engage in straw purchases could be prosecuted if they are found to be lying on the ATF Form or transferring a firearm to a person whom they know or have reasonable cause to believe is prohibited from possessing a firearm under federal law. There is not, however, a provision that makes it specifically unlawful for a person, who, knowing they are a person prohibited from possessing firearms, to direct another person to buy a firearm for them, for example. In sum, the existing statutory scheme does not include firearm specific federal provisions that would cover the wider criminal conspiracies often involved in gun trafficking schemes that include multiple straw purchases and other federal violations. Such provisions would arguably assist law enforcement by allowing them to cast a wider net to investigate and prosecute those who are engaged early on in gun trafficking schemes. The recent GAO report on firearms trafficking discusses some of the federal firearms laws that may present challenges to U.S. efforts to combat arms trafficking to Mexico.122 The report identifies three key challenges related to (1) restrictions on collecting and reporting information on firearms purchases, (2) a lack of required background checks for private firearms sales, and (3) limitations on reporting requirements for multiple sales. Currently, the ATF relies heavily on its firearms tracing program to identify individuals involved in firearms trafficking schemes and to detect trafficking patterns. Arguably, however, ATF‘s ability to trace firearms is limited, because the U.S. government is prohibited by law from maintaining a national registry of firearms.123 According to the GAO report, key law enforcement officials have stated that ―restrictions on establishing a federal firearms registry can lengthen the time and resources required by ATF to complete a crime gun trace and can limit the success of some traces.‖124 Furthermore, the report mentioned that secondary, or used, firearms are commonly trafficked to Mexico. Officials noted that, ―while ATF may be able to trace a firearm to the first retail purchaser, it generally has no knowledge of any secondhand firearms purchases from gun shows or pawnshops ... without conducting further investigation‖ because federal law currently ―permits the private transfer of certain firearms from one unlicensed individual to another [also described as ―secondary transactions‖] in places such as at gun shows, without requiring any record ... be maintained by the unlicensed individuals, an FFL, or other law enforcement authority.‖ Related to private transactions, the GAO report highlighted that the lack of required background checks for private firearms sales may also be problematic in efforts to combat gun trafficking.125 Pursuant to the Brady Handgun Violence Prevention Act, background checks are mandatory for all nonlicensed persons seeking to obtain firearms from FFLs, subject to certain exceptions.126 The private sales of firearms from one individual to another,

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including private sales at gun shows, are not subject to the background check requirement, and consequently do not require the seller to determine whether the purchaser is a felon or other prohibited person, such as an illegal alien.127 Last, the GAO report pointed out that federal law requires FFLs to report multiple sales to the Attorney General whenever they transfer more than one handgun to any nonlicensee within 5 consecutive business days (See above section ―Multiple Handgun Sales Reports‖). ATF officials noted that this federal reporting requirement ―has provided critical leads for some investigations of arms trafficking‖ and ―helps expedite the time required by ATF to complete a crime gun trace.‖128 A similar reporting requirement, if enacted, for multiple long gun sales—particularly for rifles and shotguns capable of accepting large capacity ammunition feeding devices129—would arguably provide ATF and other federal law enforcement with early warning of potential firearms trafficking schemes as 27% of firearms recovered in Mexico and traced from FY2004 to FY2008 were long guns.130 Absent is information regarding how many of those long guns were part of a multiple sales purchase. Although the GAO report underscored these three areas of federal law as potential hindrances to law enforcement‘s ability to combat firearms trafficking, Congress has passed laws on several occasions that prohibit the establishment of a registry of firearms or firearms owners (see footnote 123) and past legislative proposals to more strictly regulate private, intrastate firearm transfers at gun shows have been considered on the House and Senate floors, but have not been enacted (see footnote 125). With regard to multiple long gun reporting requirements, past legislative proposals of this nature and current law are limited to handguns. Notwithstanding Congress‘ reluctance historically to adopt such proposals, the next section analyzes three anti-firearms trafficking measures introduced in the 110th Congress.

PREVIOUSLY PROPOSED ANTI-GUN TRAFFICKING MEASURES Although no anti-gun trafficking measures have been introduced during the 111th Congress thus far, a few were introduced during the 110th Congress. These proposals would have strengthened provisions of the GCA, arguably, by repealing certain limitations on the release of ATF firearm trace data; requiring comprehensive crime gun tracing nationally; establishing new recordkeeping requirements on second-hand firearms sold or traded back to FFLs, with a focus on identifying stolen firearms; increasing penalties for licensed and nonlicensed persons for violating certain provision of the GCA; and establishing a federal onehandgun-per-month limit for transfers between FFLs and non-licensed persons.

Anti-Gun Trafficking Penalties Enhancement Act of 2007 (S. 77 and H.R. 1895) In January 2007, Senator Charles Schumer introduced S. 77, the Anti-Gun Trafficking Penalties Enhancement Act of 2007. This proposal would have:

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repealed ATF appropriations limitations that restrict the disclosure of information stored in the Firearms Trace System database or multiple handgun sales reports; required federal, state, and local law enforcement agencies that recovered a firearm that was determined to have been stolen or used in a crime to report this information to ATF, so that it could be included in the Firearms Trace System database;131 amended the Attorney General‘s (AG) authority to conduct unannounced inspections of FFLs, so that he could conduct such inspections ―at any time that‖ he ―may reasonably require‖; made certain offenses under the GCA predicate offenses under the Racketeer Influenced and Corrupt Organizations Act,132 including (1) disposal of a firearm to a prohibited person, (2) possession of a firearm or ammunition by a prohibited person, (3) knowingly handling firearms or ammunition for an employer who is known to be a prohibited person, and (4) shipping or receiving firearms while under felony indictment; and increased the maximum term of imprisonment for those violations from not more than 10 years to not more than 20 years.

Representative Carolyn McCarthy also introduced a similar proposal—H.R. 1895. This bill included all the provisions in S. 77, except for the provision that would have granted the AG additional inspection authority and the provision that would have increased the maximum penalty for certain violations.

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Detectives Nemorin and Andrews Anti-Gun Trafficking Act of 2008 (H.R. 4818) In December 2007, Representative Peter King introduced H.R. 4818, the Detectives Nemorin and Andrews Anti-Gun Trafficking Act of 2008. This proposal would have amended the GCA by creating a new subsection at 18 U.S.C § 924—Penalties. This amendment would have created a new separate ―gun trafficking‖ crime punishable by a fine and/or imprisonment of not more than 20 years for committing a certain offense under the GCA under one of two conditions. The first set of conditions would have been the offering for sale, transfer, or barter of two or more handguns, semiautomatic assault weapons,133 short-barreled shotguns, short-barreled rifles, or machineguns, of which at least one was transported, received or possessed by that person and stolen or had the importer‘s or manufacturer‘s serial number removed. The second set of conditions would have been the offering for sale, transfer, or barter of two or more handguns, semiautomatic assault weapons, short-barreled shotguns, short-barreled rifles, or machineguns, of which at least one was offered by sale, transfer, or barter, to another who is either prohibited by federal or state law from possessing a firearm, not 18 years of age, is in a school zone, or is not a resident of the state in which he has attempted to acquire the firearms. If someone committed an offense already punishable by the GCA,134 each of which carries its own penalty, under either of these conditions, such a person could be prosecuted under this separate gun trafficking crime and face a fine and/or imprisonment of not more than 20 years. This bill was silent as to whether the sentences for the proposed ―gun

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trafficking‖ crime and the individual predicate GCA offenses, if a person was prosecuted under both provisions, would have been served consecutively or concurrently. It appears that such matter would have likely been influenced by the U.S. Sentencing Commission guidelines. This bill also included numerous other provisions oriented toward gun trafficking. Among other things, the bill would have: (1) increased funding for Project Safe Neighborhoods; (2) required the AG to give a biennial report to Congress on firearms tracing and prosecutions; (3) required the FBI to give ATF access to its stolen gun files maintained in its National Crime Information Center; (4) required the AG to establish a ―national instant stolen gun check system‖; and (5) made it unlawful to transport, possess, or receive a firearm that had the importer‘s or manufacturer‘s serial number removed, obliterated, or altered, regardless of one‘s awareness of this fact.

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End Gun Trafficking Act (S. 3634) In 2008, Senator Frank Lautenberg introduced S. 3634, the End Gun Trafficking Act. This bill would have prohibited FFLs from selling or otherwise disposing of a handgun to a non-licensee, if the FFL knew or had reasonable cause to believe that the non-licensee had purchased a handgun in the previous 30-day period. With some exceptions, this bill would have also prohibited any unlicensed person from purchasing more than one handgun during any 30-day period. A violation of these prohibitions would have been punishably by a fine and/or imprisonment of not more than 10 years. S. 3634 also would have repealed the multiple handgun sales report requirement and would have authorized the AG to issue rules and regulations to ensure that the National Instant Criminal Background Check System (NICS) would be able to identify whether a prospective transferee had received a handgun from a FFL within the previous 30 days. Finally, this bill would have repealed the annual appropriations limitations for FY2004- FY2008 that prohibited the expenditure of any appropriated funding to maintain NICS records on approved transfers for more than 24 hours, and allow records to be kept for not less than 180 days.

POLICY QUESTIONS REGARDING SOUTHWEST BORDER GUN TRAFFICKING In congressional testimony, U.S. authorities have asserted a moral obligation on the part of the United States to address gun trafficking on the Southwest border.135 Yet, as described above, much of the information about Southwest border gun trafficking remains incomplete. Questions that may arise include: 

Southwest Border Gun Trafficking. Have federal authorities conducted any recent military, small arms trafficking investigations between the United States and Mexico? If so, can details of those investigations be provided? Have any of those investigations involved heavy machine guns, grenades, bazookas, or antitank

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Vivian S. Chu and William J. Krouse weapons? What is known about the scope of such small arms trafficking in Central America and Mexico? Are gun shows a major source of such armaments? 

ATF Trace Data and Trafficking. What do the trace data show concerning gun trafficking from the United States to Mexico? Can these data measure the scope of illegal gun trafficking between the two countries? Of the firearms recovered in Mexico and traced back to the United States during FYs 2005-2008, how many of these traces were later used in straw purchase investigations in the United States? How often have firearms been traced back to gun shows and corrupt federal firearms licensees? Of those traced firearms, is it known how many of those firearms would meet the definition of ―semiautomatic assault weapon‖ under prior federal law? What do the data tell us about illegal, military small arms trafficking? Do the current ―Tiahrt‖ restrictions on trace data encumber the ATF from assisting Mexican and U.S. law enforcement authorities in fighting drug-related violent crime?136



Inter-American Gun Trafficking Convention. For what reasons has the ratification of this convention not been acted upon by the Senate? Will its ratification be a priority for the 111th Congress?



Gun Trafficking Statute. Is the existing federal statutory scheme adequate to target and prosecute the ongoing gun trafficking that is occurring on the Southwest Border? Considering the scale and proliferation of gun trafficking, is there a need to create a more complex statute that specifically targets the conduct that often occurs in gun trafficking?

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End Notes 1

National Drug Intelligence Center, National Drug Threat Assessment 2009, U.S. Department of Justice, Product 2008-Q0317-005, December 2008, p. III, http://www.usdoj.gov/ndic/pubs31/31379/31379p.pdf. Department of State Bureau of International Narcotics and Law Enforcement Affairs, International Narcotics Control Strategy Report 2009, February 2009. 3 Some law enforcement agencies and observers prefer to use the term ―drug trafficking organizations‖ when referring to these groups. The term drug cartel remains the dominant term used colloquially and in the press, but some experts disagree with this because ―cartel‖ often refers to price-setting groups and it is not clear that the Mexican drug cartels are setting illicit drug prices. 4 See CRS Report R40582, Mexico’s Drug-Related Violence , by June S. Beittel. 5 One commentator has asked, ―Where are the military-grade firearms really coming from?‖ Despite press accounts to the contrary, grenades, rocket launchers, bazookas, and high-explosives are not easily obtainable in normal (nonmilitary) commercial channels in the United States. However, a significant number of these items are imported legally by the Government of Mexico from the United States, prompting this commentator to suggest that many of those items are illegally trafficked in Mexico by corrupt government officials or stolen by deserting Mexican soldiers. This commentator also suggests that other military-grade firearms that were previously transferred by the United States to other Central American countries as part of military aid packages have been trafficked illegally to Mexico. See Bill Conroy, ―Legal U.S. Arms Exports May Be Source of Narco Syndicates Rising Firepower,‖ Narcosphere, March 29, 2009. 6 U.S. Department of Justice, Statement of David Ogden, Deputy Attorney General, before the United States Senate Committee on Homeland Security and Governmental Affairs, ―Southern Border Violence: Homeland Security Threats, Vulnerabilities, and Responsibilities,‖ March 25, 2009, p. 5. 7 Ibid. 2

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U.S. Government Accountability Office, Firearms Trafficking: U.S. Efforts to Combat Arms Trafficking to Mexico Face Planning and Coordination Challenges, GAO-09-709, June 29, 2009, p. 18, http://www.gao .gov/new.items/ d09709.pdf. 9 According to GAO, Mexican authorities recovered approximately 30,000 firearms in FY2008. Of those firearms, 7,200 were submitted for tracing. Ibid., p. 16. 10 Ibid., p. 15. 11 Oscar Becera, ―Firing Line – Tracking Mexico‘s Illegal Weapons,‖ Jane’s Intelligence Review, April 28, 2008. 12 Alfredo Corchado, ―Mexico‘s violence to intensify, Officials from both sides of border may be targets, experts predict.‖ Dallas Morning News, January 4, 2009, p. 1A. 13 David Kopel, Guns in American Society, ―Mexico,‖ Second Amendment Project (2007), available at http://www.davekopel.com/espanol/Mexican-Gun-Laws.htm, last accessed on July 23, 2009. Also, see Library of Congress, Law Library, Firearms Regulations in Various Foreign Countries, Report LL98-3, 97-20110, (May 1998), pp. 131-141. 14 U.S. Department of State, Bureau of Consular Affairs, ―Mexico: Country Specific Information,‖ September 13, 2007. 15 National Rifle Association, Guide to Interstate Transportation of Firearms (2008), available at, http://www.nraila.org/GunLaws/FederalGunLaws.aspx?ID=59, last accessed on May 22, 2008. 16 According to ATF, a ―crime gun‖ is any firearm that is illegally possessed, used in crime, or suspected to have been used in crime. An abandoned firearm may also be categorized as a crime gun if it is suspected it was used in a crime or illegally possessed. See U.S. Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, Crime Gun Trace Reports (2000), National Report, The ATF Youth Crime Gun Interdiction Initiative, (July 2002), p. A-3. 17 For example, the state gun laws in New York and New Jersey are much stricter than in states like Pennsylvania and Virginia. In response to evidence of interstate gun trafficking, the Virginia General Assembly passed a law limiting handgun purchases to one gun per sale in an attempt to thwart out-of-state gun traffickers from coming to Virginia to buy multiple handguns. Va. Code § 18.2-308.2:2(P)(1). 18 Charlie Gillis, ―American Guns, Canadian Violence: Weapons Are Crossing The Border by The Thousands and The Number of People Wounded and Killed in This Country Is Mounting,‖ Macleans, August 10, 2005. 19 Library of Congress, Law Library, Firearms Regulations in Various Foreign Countries, Report LL98-3, 9720110, (May 1998), pp. 25-39. 20 Under the National Firearms Act (described below), the U.S. Attorney General maintains the National Firearms Registry and Transfer Record (NFRTR), which is a registry of machineguns that fire in full-automatic mode, certain other short-barreled and easily concealable firearms, as well as destructive devices. 21 Oscar Becera, ―Firing Line – Tracking Mexico‘s Illegal Weapons,‖ Jane’s Intelligence Review, April 28, 2008. Also, see Lora Lumpe, ―The U.S. Arms Both Sides of Mexico‘s Drug War,‖ Covert Action Quarterly, Summer 1997, no. 61, pp. 39-46. 22 Ibid. 23 Tim Weiner and Ginger Thompson, ―U.S. Guns Smuggled Into Mexico Feed Drug War,‖ New York Times, May 19, 2001, p. 3. 24 26 U.S.C. § 5801 et seq. 25 18 U.S.C. § 921 et seq. 26 P.L. 103-159, codified at 18 U.S.C. § 922(t). 27 A person is ―engaged in the business‖ as a firearms dealer if he devotes time, attention, and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through repetitive purchase and resale of firearms. The term does not apply to a person who makes occasional sales, exchanges, or purchase of firearms for the enhancement of a personal collection or hobby, or who sells all or part of his personal collection of firearms. 18 U.S.C. § 921(a)(21). 28 18 U.S.C. §§ 922(g) and (n). 29 18 U.S.C. § 922(y). 30 For further information, see ATF brochure, ―Nonimmigrant Aliens Purchasing Firearms and Ammunition in the United States (ATF P 5300.18),‖ (Washington, July 2002). 31 22 U.S.C. §2778 et seq. This section was written by Jeanne J. Grimmett, Legislative Attorney, x75046. 32 The USML is set out at 22 C.F.R. Part 121. 33 See Category I of USML. 34 The International Traffic in Arms Regulations are set forth in 22 C.F.R. Parts 120-130. The U.S. Attorney General, through the ATF, controls the permanent importation of defense articles from foreign countries by persons subject to U.S. jurisdiction under 27 C.F.R. Part 447. Items subject to ATF controls are enumerated in the U.S. Munitions Import List set out at 27 C.F.R. § 447.21. 35 See 15 C.F.R. § 734.3(b) for a list of items whose export is exclusively controlled by other federal agencies (e.g., the Department of Energy).

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This section was written by Jeanne Grimmett, Legislative Attorney, x75046. For further information on the EAA, see CRS Report RL3 1832, The Export Administration Act: Evolution, Provisions, and Debate, by Ian F. Fergusson. 37 15 C.F.R. Parts 730 et seq. 38 Executive Order 13222, 73 Fed. Reg. 43603 (2008). 39 IEEPA, P.L. 95-223, as amended, § 202, 203, 50 U.S.C. §§ 1701, 1702. 40 See 15 C.F.R. § 742.7(a): this regulation requires licenses for the export and re-export of crime control and detection equipment, related technology and software ―[i]n support of U.S. foreign policy to promote the observance of human rights throughout the world.‖ 41 CIFTA stands for ―Convención Interamericana contra la Fabricación y el Trafico Illicitos de Armas de Fuego, Municiones, Explosivos y otros materiales relacionados.‖ 42 15 C.F.R. § 742.17 (a). The full list of OAS countries is set out at 15 C.F.R. § 742.17(e). The text of the Convention is available at http://www.oas.org/juridico/English/treaties 43 See generally Export of Firearms, 64 Fed. Reg. 17968 (Apr. 13, 1999) and Senate Treaty Doc. 105-49, at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=105_cong_documents&docid=f:td049.105.pdf; Although the U.S. is a signatory to the treaty, lack of ratification means that the treaty is not legally binding upon the United States. 44 Matthew Schroeder, ―Small Arms, Terrorism, and the OAS Firearms Convention,‖ Federation of American Scientists, Occasional Paper No. 1, March 2004, available at, http://fas.org/asmp/library/OAS/FullReport.pdf. 45 See Message from the President of the United States Transmitting the Inter-American Convention Against the Illicit Manufacturing of and Trafficking in Firearms, Ammunition Explosives, and Other Related Materials, Treaty Doc. 105- 49, 105th Cong., 2d Sess. at III (June 9, 1998) (hereinafter referred to as ―Treaty Doc. 10549‖). 46 See United States Department of State, Bureau of Western Hemisphere Affairs, Fact Sheet on the Inter-American Convention Against the Illicit Manufacturing of and Trafficking in Firearms, Ammunition, Explosives, and Other Related Materials, February 5, 2009. Available at http://www.state.gov/p/wha/rls/fs/2009/114984.htm. Although the U.S. is a signatory to the treaty, lack of ratification means that the treaty is not legally binding upon the United States. 47 See Treaty Doc. 105-49 at III. 48 U.S. Department of Justice, Statement of David Ogden, Deputy Attorney General, before the United States Senate Committee on Homeland Security and Governmental Affairs, ―Southern Border Violence: Homeland Security Threats, Vulnerabilities, and Responsibilities,‖ March 25, 2009, p.11. 49 U.S. Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives, Project Gunrunner: The Southwest Border Initiative, ATF P 3317.6, March 2009, available at http://www.atf.gov/pub/fire-explo_pub/ p33 17_6rev2.pdf. 50 Greg Ridgeway, Glenn L. Pierce, and Anthony A. Braga, et al., Strategies for Disrupting Illegal Firearms Markets: A Case Study of Los Angeles, RAND Corporation, 2008, p. 1. 51 For example, in the 109th Congress, the House Judiciary Crime subcommittee held two oversight hearings examining ATF firearms enforcement operations at guns shows in Richmond, Virginia, in 2005. ATF agents reportedly provided state and local law enforcement officers with confidential information from background check forms (ATF Form 4473s), so that officers could perform residency checks on persons who had otherwise legally purchased firearms at those gun shows. Questions were also raised as to whether ATF agents had profiled gun purchasers at those gun shows on the basis of race, ethnicity, and gender. See U.S. Congress, House of Representatives, Committee on the Judiciary, Subcommittee on Crime, Terrorism, and Homeland Security, Oversight Hearing on the Bureau of Alcohol, Tobacco, Firearms, and Explosives (BATFE) Parts I & II: Gun Show Enforcement, February 15 and 28, 2006. Also see Department of Justice, Office of the Inspector General, The Bureau of Alcohol, Tobacco, Firearms and Explosives‘ Investigative Operations at Gun Shows, I-2007-007, June 2007. 52 For FY2009, Congress has provided ATF with funding for 2,504 SAs. 53 For FY2009, Congress has provided ATF with funding for 789 IOIs. 54 18 U.S.C. § 923(g)(1)(B). 55 U.S. Department of Justice, Office of the Inspector General, Inspections of Firearms Dealers by the Bureau of Alcohol, Tobacco, Firearms and Explosives, Report Number I-2004-005, (July 2004), p. xi. 56 U.S. Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives, Congressional Budget Submission, Fiscal Year 2008, (February 2007), p. 29. 57 U.S. Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives, Congressional Budget Submission, Fiscal Year 2010, May 2009, p. 5. 58 Ibid. 59 A person is ―engaged in the business‖ as a firearms dealer if he devotes time, attention, and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through repetitive purchase and resale of firearms. The term does not apply to a person who makes occasional sales,

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exchanges, or purchase of firearms for the enhancement of a personal collection or hobby, or who sells all or part of his personal collection of firearms. 18 U.S.C. § 921(a)(21). 60 See 27 CFR § 478.11 for the definition of ―curios and relics,‖ which generally include firearms that are 50 years old, of museum interest, or derive a substantial amount of their value from the fact that they are novel, rare, bizarre, or because they are associated with some historical figure, period, or event. For a list of ―curios and relics,‖ go to http://www.atf.gov/firearms/curios/index.htm. 61 Ibid. 62 18 U.S.C. § 921 et seq. 63 18 U.S.C. § 922(a)(6); 18 U.S.C. § 924(a)(2). 64 18 U.S.C. § 2. 65 18 U.S.C. § 554. Depending on the type of firearm, it is also a violation of either the Arms Export Control Act (AECA; 22 U.S.C. § 2778 et seq.) or the Export Administration Act of 1979 (EAA; 50 U.S.C. app. §§ 240 12420) to transport a handgun, rifle, or shotgun across the border into Mexico without proper authorization of the U.S. government. 66 P.L. 99-308, § 103, May 19, 1986, 100 Stat. 453. 67 18 U.S.C. § 923(g)(3). 68 P.L. 103-159, § 201, November 30, 1993, 107 Stat. 1544. 69 18 U.S.C. § 922(a)(5). 70 See Brady Center to Prevent Gun Violence website on state gun laws, http://www.stategunlaws.org/. 71 Tobar, ―Guns Flow Easily Into Mexico From The U.S.,‖ Los Angeles Times, January 8, 2006, p. A1. 72 Formerly codified at 18 U.S.C. § 921(a)(30)(B). 73 Formerly codified at 18 U.S.C. § 921(a)(30)(C) and (D). 74 26 U.S.C §§ 5861(d) and (j). 75 26 U.S.C § 5872; 49 U.S.C §§ 78 1-788. 76 U.S. Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives, ATF National Firearms Act Handbook, ATF E-Publication 5329.8, June 2007, pp. 11-14. 77 U.S. Government Accountability Office, Firearms Trafficking: U.S. Efforts to Combat Arms Trafficking to Mexico Face Planning and Coordination Challenges, GAO-09-709, June 2009, p. 20. 78 For further information, see CRS Report RL345 14, The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF): Budget and Operations, by William J. Krouse. 79 Statement of William Hoover, Assistant Director for Field Operations, Bureau of Alcohol, Tobacco, Firearms and Explosives, before the Subcommittee on the Western Hemisphere, Committee on Foreign Affairs, House of Representatives, concerning ―U.S. Obligations under the Merida Initiative,‖ February 7, 2008. 80 CRS conversation with the Bureau of Alcohol, Tobacco, Firearms and Explosives, Office of Legislative Affairs, February 18, 2009. 81 U.S. Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives, Congressional Budget Submission, Fiscal Year 2009 (Feb. 2008), Exhibit C – Program Increases/Offsets by Decision Unit. 82 P.L. 111-5; 123 Stat 115 (2009). 83 P.L. 111-8; 123 Stat 524 (2009). 84 This supplemental funding brings total enacted FY2009 funding for ATF to $ 1.068 billion. 85 The ATF FY2010 budget request includes $1. 121 billion for ATF, or a proposed 6.4% increase compared to the FY2008 enacted appropriation. 86 U.S. Department of Justice, Justice Management Division, FY2010 Budget and Performance Summary, (May 2009), p. 139. Available at http://www.usdoj.gov/jmd/2010summary/. 87 U.S. Congress, House Committee on Appropriations, Subcommittee on Commerce, Justice, Science, and Related Agencies, Commerce, Justice, Science, and Related Agencies Appropriations Bill, 2010, To accompany H.R. 2847, 111th Cong., 1st sess., June 12, 2009, H.Rept. 111-149, p. 66. 88 U.S. Congress, Senate Committee on Appropriations, Subcommittee on Commerce, Justice, Science, and Related Agencies Appropriations, Departments of Commerce and Justice, and Science, and Related Agencies Appropriations Bill, 2010, 111th Cong., 2nd sess., June 25, 2009, S.Rept. 111-34, p. 68. 89 ATF briefing provided to CRS on May 5, 2008. 90 Statement of William Hoover, Assistant Director for Field Operations, Bureau of Alcohol, Tobacco, Firearms and Explosives, before the U.S. House of Representatives, Committee on Foreign Affairs, Subcommittee on the Western Hemisphere, February 7, 2008. 91 It is likely, however, that these weapons were acquired from sources in Central America, where they were originally sold to the Honduran, El Salvadoran, and Nicaraguan militaries and have since entered the black market. CRS conversation with the Bureau of Alcohol, Tobacco, Firearms and Explosives, Office of Legislative Affairs, on February 19, 2009. 92 Bureau of Alcohol, Tobacco, Firearms and Explosives, Office of Public Affairs, ―ATF Expands Efforts to Combat Illegal Flow of Firearms to Mexico,‖ Jan. 16, 2008. 93 ATF briefing provided to CRS on April 16, 2009. 94 Ibid.

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U.S. Government Accountability Office, Firearms Trafficking: U.S. Efforts to Combat Arms Trafficking to Mexico Face Planning and Coordination Challenges, GAO-09-709, June 2009, 83 pp. 96 Ibid., p. 18. 97 Ibid., p. 15. 98 Ibid. 99 Ibid., p. 16. 100 Ibid. 101 Ibid., p. 17. 102 Ibid., pp. 18-19. 103 Ibid., p. 19. 104 Ibid., p. 59. 105 For further information, see CRS Report R40 135, Mérida Initiative for Mexico and Central America: Funding and Policy Issues, by Clare Ribando Seelke. 106 Prosecuting cases that involve gun trafficking also occurs on the state level. For example, the Arizona Attorney General‘s Office charged one man with one count of fraudulent schemes and artifices, the commission of which carries a maximum 12.5 year sentence. The defendant was linked to a huge stash of firearms, including two .50-caliber rifles— all of which were associated with the drug-war violence in Juarez, Mexico. See Sean Holstege and Lindsey Collom, ―Key suspect arrested in gunrunning,‖ The Arizona Republic, April 4, 2008, at 1. 107 E.g., in June 2009, the U.S. Attorney‘s Office for the Southern District of California announced that one man was sentenced to serve 211 months in prison for drug possession with intent to distribute and carrying a firearm in relation to a drug trafficking crime (18 U.S.C. § 924(c)). In December 2008, the U.S. Attorney‘s Office for the District of Arizona announced that one man received an enhanced sentence for being an armed career criminal found guilty of being a felon in possession of a firearm (18 U.S.C. § 922(g)). The defendant was one of several individuals investigated by Phoenix law enforcement and ATF agents for illegal firearms and narcotics trafficking in central Phoenix. 108 U.S. Department of Justice, U.S. Attorney‘s Office, Southern District of Texas, ―Starr County Men Charged With Selling Machine Guns, Silencers, and Other Firearms,‖ press release, Feb. 7, 2008. A fifth man was still at large at the time of the release. 109 18 U.S.C. § 924(a)(2). 110 26 U.S.C. § 5871. 111 U.S. Department of Justice, U.S. Attorney‘s Office, Southern District of Texas, ―Brownsville Man Sentenced to Prison for Firearms Trafficking,‖ press release, Oct. 2, 2008. 112 One of the co-defendants was also sentenced for conspiracy and making false statements, but received a less severe sentence then his co-defendants of 6 months in federal prison and 4 months in a community corrections center (halfway house). 113 U.S. Department of Justice, U.S. Attorney‘s Office, Southern District of Texas, ―Victoria Resident Pleads Guilty to Numerous Federal Firearms Violations,‖ press release, Dec. 31, 2008. 114 Ibid. According to the USAO, a search of the motor home resulted in the discovery and seizure of ammunition, gun orders, Mexican immigration documents, and other evidence of firearms trafficking. 115 This defendant‘s exporting of firearms without a license was contrary to the AECA. 116 In contrast to firearms statutes, federal drug statutes define narcotics trafficking, see 21 U.S.C. § 1907(3) (defining ―narcotics trafficking‖ as ―any illicit activity to cultivate, produce, manufacture, distribute, sell, finance or transport narcotic drugs, controlled substances, or listed chemicals‖). 18 U.S.C. § 554 makes it a crime, punishable by not more than 10 years in prison, to smuggle goods from the United States if a person ―fraudulently or knowingly exports or sends from the United States, or attempts to export ... any merchandise, article or object contrary to any law or regulation ... or receives, conceals, buys, sells, or in any manner facilitates the transportation ... of such merchandise ... prior to exportation, knowing the same to be intended for exportation contrary to any law‖; 18 U.S.C. § 545 makes it a crime, punishable by not more than 20 years in prison, to smuggle goods into the United States. 117 18 U.S.C. 924(k)(3). Notably, this provision that penalizes smuggling of firearms provides a lesser penalty compared to 18 U.S.C. § 545, which makes it punishable by not more than 20 years‘ imprisonment and/or a fine to ―knowingly and willfully, with intent to defraud the United States, smuggle or clandestinely introduce or attempt to smuggle ... into the United States any merchandise which should have been invoiced.‖ 118 18 U.S.C. § 922(a)(1)(A). Violating this provision is punishable by a fine or imprisonment for five years, or both, under 18 U.S.C. § 924(a)(1)(D). 119 Under 18 U.S.C. § 922(m), it is unlawful for a federally licensed dealer to make a false entry in, fail to make an entry in, or fail to properly maintain records the licensee is required to keep. Besides maintaining the ATF Form 4473 for approved transfers, federally licensed dealers are required to maintain a bound log book of all firearms transactions. Failing to properly record a firearms transaction is punishable by a fine or one year in prison, or both, under 18 U.S.C. § 924(a)(1)(C) and (D). 120 18 U.S.C. § 922(d).

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18 U.S.C. § 922(a)(6). Both the dealer and the buyer are required to fill out an ATF Form 4473, on which the buyer (transferee) attests to the dealer (transferor) that he is buying the firearm for himself and that he is not otherwise prohibited from possessing a firearm. Knowingly making a false statement on a ATF Form 4473 is punishable under 18 U.S.C. § 924(a)(2) by a fine or imprisonment for ten years or both. 122 U.S. Government Accountability Office, Firearms Trafficking: U.S. Efforts to Combat Arms Trafficking to Mexico Face Planning and Coordination Challenges, GAO-09-709, June 2009, p. 24. [hereinafter referred to as GAO Firearms Trafficking report.] 123 18 U.S.C. § 926 (prohibits the promulgation of any rule that would have the contents of the records maintained by FFLs be controlled, transferred, or managed by the United States or any State and prevents creation of firearms registry). For FY1979 and thereafter, Congress has included a proviso in the ATF salaries and expenses appropriations language that states that no funds shall be used ―in connection with consolidating or centralizing, within the Department of Justice, the records, or any portion thereof, of acquisition or disposition of firearms maintained by Federal firearms licensees.‖ For latest proviso, see the Omnibus Appropriations Act, 2009 (P.L. 111-8; 123 Stat. 574). In addition, in the Brady Handgun Violence Prevention Act (P.L. 103-159; 107 Stat. 1542), Congress prohibited the use of any information generated by the system established under the National Instant Criminal Background Check System to be used to establish any system for the registration of firearms, firearms owners, or firearms transactions or disposition, except for information related to background checks on prohibited persons (107 Stat. 1542). 124 GAO Firearms Trafficking report, p. 25. 125 Congress has considered legislation to close the ―gun show loophole,‖ and several related bills have been introduced in recent Congresses. For example, in the 106th Congress, Senator Frank Lautenberg successfully amended a juvenile justice bill (S. 254) with such a proposal, and the Senate passed this bill on May 20, 1999. Representative John Conyers successfully offered a similar amendment to a house juvenile justice bill (H.R. 2122) on June 18, 1999, but the House did not pass this bill. In the 108th Congress, Senator John McCain successfully offered a similar amendment to a firearms industry protection act on March 2, 2004, but the Senate floor manager pulled this bill before a final vote could be taken. Senator McCain introduced the Gun Show Loophole Closing Act during the 107th and 108th Congresses. In addition, Representative Michael Castle has introduced the Gun Show Loophole Closing Act from the 107th to the 111th Congresses. Senator Lautenberg has introduced the Gun Show Background Check Act in both the 110th and 111th Congresses. For gun show proposals in the 111th Congress, see S. 843 and H.R. 2324. See CRS Report RL32842, Gun Control Legislation, by William J. Krouse. 126 18 U.S.C. 922(t). 127 However, under 18 U.S.C. § 922(d), it is unlawful for any person to sell or otherwise dispose of a firearm or ammunition to any person knowing or having reasonable cause to believe that such person is a prohibited person under 18 U.S.C. 922(g). 128 GAO Firearms Trafficking report, p. 28. 129 Before the 1994 semiautomatic assault weapons ban was allowed to sunset on September 13, 2004, a large capacity ammunition feeding device was defined as a ―magazine, belt, drum, feed strip, or similar device manufactured after the date of enactment of the Violent Crime Control and Law Enforcement Act of 1994 that has a capacity of, or that can be readily restored or converted to accept, more than 10 rounds of ammunition.‖ See former 18 U.S.C. § 921 (a)(3 1). 130 GAO Firearms Trafficking report, p. 28. 131 Currently, federal, state, local, and tribal law enforcement agencies may submit information to the FBI for inclusion in the National Crime Information Center‘s stolen gun file. FFLs, on the other hand, are required to report the theft or loss of firearms to ATF and local police within 48 hours following discovery. 18 U.S.C. § 923(g)(6). 132 18 U.S.C. §§ 1961-1968. 133 As previously mentioned, a statutory definition for ―semiautomatic assault weapon‖ no longer exists. The 1994 Semiautomatic Assault Weapons (SAW) Ban, which expired in 2004, had defined, for example, a rifle as a semiautomatic assault weapon if it was able to accept a detachable magazine and included two or more of the following five characteristics: (1) a folding or telescopic scope, (2) a pistol grip, (3) a bayonet mount, (4) a muzzle flash suppressor or threaded barrel capable of accepting such a suppressor, or (5) a grenade launcher. (Former 18 U.S.C. § 921(a)(30)). Similar definitions existed for semiautomatic pistols and shotguns. 134 The GCA offenses in title 18 that would have been implicated in this new gun trafficking crime were: (1) § 922(a)(1)(A), unlawful to willfully engage in business of dealing firearms without a license; (2) § 922(a)(3), unlawful for non-licensee to willfully transport or receive a firearm obtained in another state into his state of residence; (3) § 922(a)(6), unlawful to knowingly make a materially false statement to a FFL; (4) § 922(b)(2), unlawful for a FFL to willfully deliver a firearm to a person where the purchase or possession would violate state law; (5) § 922(b)(3), unlawful for a FFL to willfully deliver a firearm to a person residing in a state other than the FFL‘s; (6) § 922(b)(5), unlawful for FFL to willfully dispose of a firearm without making entries required by law; (7) § 922(d), unlawful for any person to knowingly dispose a firearm to a prohibited person; (8) § 922(g), unlawful for any prohibited person to knowingly receive or possess firearm or ammunition; (9) §

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922(i), unlawful for any person to knowingly transport or ship a stolen firearm; (10) § 922(j), unlawful for any person to knowingly receive, possess, conceal, store, barter, sell, or dispose of stolen firearm; (11) § 922(k), unlawful for any person to knowingly transport, ship, or receive a firearm that has obliterated or altered serial number; (12) § 922(m), unlawful for a FFL to knowingly make a false entry in or properly maintain records required by law; (13) § 922(n), unlawful for any person to willfully ship or receive firearms or ammunition if under indictment for felony; (14) § 924(c), unlawful for any person to use or carry a firearm during or in relation to a federal crime of violence or drug trafficking crime; (15) § 924(h), unlawful for any person to transfer a firearm knowing it will be used to commit a crime of violence or drug trafficking crime. Statement of Thomas A. Shannon, Assistant Secretary of State, Bureau of Western Hemisphere Affairs, U.S. Department of State, before House Foreign Affairs Committee, Western Hemisphere Subcommittee, ―Hearing on U.S. and Latin American Security,‖ February 7, 2008. Added to the ATF appropriations from FY2004 through FY2008, the Tiahrt firearms trace data restriction prohibits the use of any funding appropriated for ATF to disclose firearm trace or multiple handgun sales report data for any purpose other than supporting ―bona fide‖ criminal investigations or agency licensing proceedings. Moreover, the language of the restriction includes the phrase, ―in fiscal year 2008 and thereafter,‖ which makes the limitation permanent law according to the Government Accountability Office. See U.S. Government Accountability Office, ―Bureau of Alcohol, Tobacco, Firearms, and Explosives—Prohibition in the 2008 Consolidated Appropriations Act,‖ July 15, 2008.

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Chapter 5

BORDER SEARCHES OF LAPTOP COMPUTERS AND OTHER ELECTRONIC STORAGE DEVICES Yule Kim

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SUMMARY As a general rule, the Fourth Amendment of the U.S. Constitution requires governmentconducted searches and seizures to be supported by probable cause and a warrant. Federal courts have long recognized that there are many exceptions to these requirements, one of which is the border search exception. The border search exception permits government officials to conduct ―routine‖ searches based on no suspicion of wrongdoing whatsoever. On the other hand, when warrantless border searches are particularly invasive, and thus ―nonroutine,‖ they are permissible only when customs officials have, at a minimum, a ―reasonable suspicion‖ of wrongdoing. The federal courts that have addressed this issue have held that the border search exception applies to searches of laptops at the border. Although the Supreme Court has not directly addressed the degree of suspicion needed to search laptops at the border without a warrant, the federal appellate courts that have addressed the issue appear to have concluded that reasonable suspicion is not needed to justify such a search. The Ninth Circuit, in United States v. Arnold, explicitly held that reasonable suspicion is not required to conduct a warrantless search of a laptop at the border. Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE), two agencies within the Department of Homeland Security (DHS) that have roles in border security, have published directives outlining their policies and procedures regarding laptop border searches. Both policies assert that, as a general matter, laptop border searches may be conducted without any individualized suspicion and require reasonable suspicion only in certain circumstances. A bill introduced in the 111th Congress, the Securing our Borders and our Data Act of 2009 (H.R. 239), would impose more rigorous standards for laptop searches than those the federal courts have determined are constitutionally required. Another bill introduced in the

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111th Congress, the Border Security Search Accountability Act of 2009 (H.R. 1726), would mandate that the Commissioner of Customs and Border Protection promulgate a rule with respect to the scope of and procedural and record keeping requirements associated with border security searches of electronic devices.

INTRODUCTION A developing issue in the law of search and seizure is whether the Fourth Amendment of the U.S. Constitution permits warrantless searches of the content of laptop computers and other electronic storage devices at U.S. borders. The federal courts that have addressed this issue have held that the border search exception to the Fourth Amendment applies to these searches, making warrantless searches permissible. Although most of these courts did not make explicit the degree of suspicion needed to initiate such a search, the United States Court of Appeals for the Ninth Circuit ruled that the Fourth Amendment does not require reasonable suspicion, or, for that matter, any suspicion of wrongdoing at all, to justify a warrantless search of laptops at the border.

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BORDER SEARCH EXCEPTION The Fourth Amendment mandates that a search or seizure conducted by a government agent must be ―reasonable.‖1 As a general rule, courts have construed Fourth Amendment reasonableness as requiring probable cause2 and a judicially granted warrant.3 Nonetheless, the Supreme Court has recognized several exceptions to these requirements, one of which is the border search exception.4 The border search exception to the Fourth Amendment allows federal government officials to conduct searches at the border without a warrant or probable cause. Although Congress and the federal courts have long assumed, at least implicitly, the existence of a border search exception,5 the Supreme Court did not formally recognize it until it decided Ramsey v. United States in 1977.6 In Ramsey, the Supreme Court approved the search of several suspicious envelopes (later found to contain heroin) conducted by a customs official pursuant to search powers authorized by statute.7 The Court determined that the customs official had ―reasonable cause to suspect‖8 suspicious activity when searching the envelopes.9 This standard, while less stringent than probable cause, was sufficient justification.10 The border search exception has subsequently been expanded beyond persons, objects, and mail entering the United States, to cover individuals and objects departing from the United States11 and to apply in places deemed the ―functional equivalent‖ of a border, such as international airports.12 As the border search exception has further developed in case law, lower federal courts have recognized two different categories of border searches: routine and non-routine. This distinction is based on language in United States v. Montoya de Hernandez, where the Supreme Court determined the level of suspicion needed to justify ―a seizure of an incoming traveler for purposes other than a routine border search.‖13 In that case, customs officials detained a traveler whom they suspected of smuggling drugs.14 The customs officials

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eventually obtained a court order authorizing a rectal examination, which produced a balloon containing cocaine.15 The Court held that, even though the detention ―was beyond the scope of a routine customs search and inspection,‖ the customs officials‘ ―reasonable suspicion‖ that the suspect was smuggling drugs provided sufficient justification for the search.16 Federal courts have since interpreted this case to stand for the proposition that ―reasonable suspicion‖ (i.e., a particularized and objective basis for suspecting wrongdoing) is required to justify similarly invasive searches.17 Although the Court in Montoya de Hernandez focused on a ―non-routine‖ detention of a traveler at the border, lower federal courts, interpreting dictum in that case, began distinguishing unusually intrusive searches from ―routine‖ searches.18 These courts thereby expanded the border search exception by concluding that a customs official may conduct ―routine‖ warrantless searches of persons or effects without any reason for suspicion.19 The Supreme Court further developed this doctrine in United States v. Flores-Montano, in which it held that the disassembly and examination of an automobile gasoline tank at the border did not have to be justified by any suspicion of wrongdoing.20 The Court concluded that the gasoline tank search was no more intrusive than a routine vehicle search because there was no heightened expectation of privacy surrounding the contents of a gasoline tank; this conclusion was reached even though the search involved a time-consuming disassembly of the vehicle.21 Flores-Montano illustrates that extensive, time-consuming, and potentially destructive warrantless searches of objects and effects can be conducted without any reasonable suspicion of wrongdoing. In summary, Supreme Court precedent currently indicates that federal border officers do not need any suspicion of wrongdoing to support most border searches. An exception arises, however, with respect to highly intrusive, non-routine searches. These searches require ―reasonable suspicion.‖22 Yet, the precise level of intrusion that would render a border search non-routine is undefined in the case law.23 Typically, this question is dealt with in a factspecific manner on a case-by-case basis.24 Nonetheless, Flores-Montano indicates that, unlike a search of a person‘s body, intrusiveness may not be a dispositive factor when determining whether the search of a vehicle or personal effects requires reasonable suspicion. Thus, it appears that in most cases, courts are likely to uphold that even very invasive searches of personal property can be conducted without a warrant and be based on no suspicion whatsoever.25

JUDICIAL DEVELOPMENTS ON LAPTOP SEARCHES With the advent of portable computing, it is now common practice for travelers to store their data on laptop computers, compact discs, and other electronic storage devices and to travel with them across the U.S. border. In response, customs officials have been searching and seizing such devices. The issue confronting federal courts is whether the border search exception applies to electronic storage devices, and if it does, what degree of suspicion is needed to justify a warrantless search. The Supreme Court has yet to address this issue. Most lower federal courts, however, have concluded that searches of laptops, computer disks, and other electronic storage devices fall under the border search exception, which means neither a warrant nor probable cause is

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necessary to support the search.26 Nonetheless, these courts have not explicitly established the degree of suspicion required to justify a warrantless search of a laptop at the border; rather, courts have avoided the issue by finding that reasonable suspicion supported the particular searches before them.27 Even in the one instance a court held that a laptop search was routine, it also found that reasonable suspicion supported the search.28 The one exception to this trend is United States v. Arnold, in which the Ninth Circuit explicitly held that reasonable suspicion was not needed to support a warrantless border search of laptops and other electronic storage devices.29 Because laptop border search cases are a developing area of case law, a full understanding of this issue requires a closer look at the facts of these cases and the approaches the courts used in their analyses.

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United States v. Ickes One of the first federal appellate cases to discuss searches of laptops at the border is United States v. Ickes.30 In Ickes, a customs official, without a warrant, searched the defendant‘s van near the Canadian border after discovering during a routine search a videotape that focused excessively on a young ballboy during a tennis match.31 His suspicions raised, the official requested the assistance of a colleague. They then proceeded to conduct a more thorough search in which they uncovered marijuana paraphernalia, a photo album containing child pornography, a computer, and several computer disks.32 Other customs officials proceeded to examine the contents of the computer and disks, all of which contained additional child pornography.33 The defendant later filed a motion, which was denied by the trial court, seeking to suppress the contents of the computer and disks on both First and Fourth Amendment grounds.34 The Fourth Circuit held that the search of the defendant‘s computer and disks did not violate either the Fourth or First Amendment. Regarding the Fourth Amendment challenge, the court noted that the border search exception applied in this case.35 The court concluded by opining that ―[a]s a practical matter, computer searches are most likely to occur where—as here—the traveler‘s conduct or the presence of other items in his possession suggest the need to search further,‖ indicating that the court believed that such searches will typically occur only when a customs official has reasonable suspicion.36 The court also rejected the defendant‘s contention that the First Amendment bars the border search exception from being applied to ―expressive‖ materials. The court stated that a First Amendment exception would ―create a sanctuary for all expressive materials—including terrorist plans,‖ and that it would cause an excessive amount of administrative difficulties for those who would have to enforce it.37

United States v. Romm The Ninth Circuit has also addressed this issue in United States v. Romm.38 The defendant in that case had arrived at an airport in British Columbia when a Canadian customs agent, after discovering that he had a criminal history, searched the defendant‘s laptop.39 During the search, the Canadian customs agent uncovered child pornography sites in the laptop‘s

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―internet history‖; the defendant was consequently denied entry into Canada and flown to Seattle.40 The Canadian authorities informed U.S. Immigration and Customs Enforcement (ICE) of the contents of the defendant‘s laptop. When the defendant arrived in Seattle, ICE detained the defendant and convinced him to allow ICE agents to examine his laptop without a warrant.41 ICE agents then used a forensic analysis, which recovered deleted child pornography from the laptop. The defendant later filed a motion to suppress the evidence obtained from his laptop, which the trial court denied.42 The Ninth Circuit held that the forensic analysis used by the ICE agents fell under the border search exception.43 The court noted that airport terminals were ―the functional equivalents‖ of a border, allowing customs agents to conduct routine border searches of all deplaning passengers.44 The court then stated that all passengers deplaning from an international flight are subject to ―routine‖ border searches.45 Because the defendant failed to brief the argument that the First Amendment implications of warrantless laptop searches render such searches ―non-routine,‖ the court did not consider that argument.46 The court instead presumed that the search of the defendant‘s laptop was a part of a ―routine‖ search conducted after deplaning from an international flight.47 However, because the court made this conclusion solely because the defendant failed to brief his argument, the court‘s determination that the search was ―routine‖ had no precedential effect.48

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United States v. Arnold In United States v. Arnold, another Ninth Circuit case, the court, apparently disregarding the traditional routine/non-routine distinction used in most border search cases, expressly held that reasonable suspicion was not required to support the warrantless laptop border search at issue.49 Here, the defendant had returned from the Philippines when he underwent secondary questioning at the airport after having passed through the first customs checkpoint.50 The customs agent, without a warrant, ordered the defendant to ―turn on the computer so she could see if it was functioning.‖51 While the defendant‘s luggage was being inspected, another customs agent searched the laptop‘s contents and found pictures of nude adult women.52 The defendant was then detained for several hours while special agents from ICE conducted a more extensive search of the laptop and discovered material they believed to be child pornography.53 The Ninth Circuit first stated that warrantless ―searches of closed containers and their contents can be conducted at the border without particularized suspicion under the Fourth Amendment.‖54 Nonetheless, the court noted that the Supreme Court has recognized two situations where reasonable suspicion is required to conduct a search of personal property: (1) when the search is destructive, and (2) when the search is conducted in a particularly offensive manner.55 Outside of these two situations, reasonable suspicion is not required to search property, regardless of the nature of the property being searched. Thus, the Ninth Circuit refused to take into consideration any special qualities of laptops that may distinguish them from other containers, such as a laptop‘s capability of storing large amounts of private data. Indeed, the court did not find the search of a laptop to be intrinsically ―offensive‖ simply because a laptop had a large storage capacity.56 Instead, the court treated border searches of laptops no differently from border searches of any other type of personal property.57

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The Ninth Circuit, in its analysis, rejected the use of an ―intrusiveness analysis.‖ An intrusiveness analysis would require a customs officer to evaluate the potential intrusiveness of each search he wished to conduct on a case-by-case basis in order to determine whether reasonable suspicion would be needed to justify the search.58 The court instead adopted a categorical approach to warrantless border searches: so long as the search is of a physical object rather than a person‘s body, reasonable suspicion is not required if the search is not physically destructive or particularly offensive. The Ninth Circuit also refused to apply a ―least restrictive means‖ test to evaluate the constitutionality of a border agent‘s chosen method of conducting the search.59 Thus, under the court‘s analysis, a border agent seemingly can conduct a search without having to determine whether a less intrusive means is available. The argument in favor of this categorical approach is that it appears easier for border agents to follow. On the other hand, the breadth of the Ninth Circuit‘s ruling apparently allows border agents, so long as they avoid searching a person‘s body, almost total discretion in determining both when, and in what manner, they may search personal property. Finally, the Ninth Circuit refused to recognize a First Amendment protection of expressive materials searched at the border. Similar to the reasoning in Ickes, the court held that doing so could protect terrorist communications, create an unworkable standard for government agents, and contravene Supreme Court precedent.60

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United States v. Seljan The majority opinion in United States v. Seljan reaffirmed Arnold by holding that an incidental search of a letter‘s content at the border did not require reasonable suspicion.61 However, a dissent by Judge Alex Kozinski argued that reasonable suspicion was required because a letter contains personal thoughts that the letter‘s author would expect to be normally immune from search, especially absent suspicion of wrongdoing. Although the facts of this case only involve letters, the analyses of both the majority and dissenting opinions address the search of text, and thus would seem to apply to written communications generally, including electronic communications. In this case, a customs official discovered a letter soliciting sex from a child while searching a package being mailed to the Philippines. The search of the letter‘s contents was upheld even though the scope of the statute authorizing the search was limited to the interdiction of undeclared currency transported across the U.S. border.62 Indeed, the Seljan majority specifically cited Ramsey, arguably the seminal case concerning the border search doctrine, in holding that ―an envelope containing personal correspondence is not uniquely protected from search at the border.‖63 Moreover, the court found additional justification for the search by concluding that it was not unreasonable under the circumstances because the customs official did not ―read‖ the contents of the letter. Rather, he merely ―scanned‖ it with his eyes, which then gave rise to the reasonable suspicion of unlawful conduct that justified a more exacting examination of the letter‘s contents.64 In contrast, Judge Kozinksi, in his dissent, argued that the Fourth Amendment provides heightened protections for expressive materials at the border. 65 He made two arguments to support this proposition. The first is based on the Fourth Amendment‘s text, which contains a

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specific prohibition against the unreasonable search and seizure of ―papers.‖ Judge Kozinski argued that this specific prohibition signals the Framers‘ desire to insulate expressive content, and the personal thoughts contained therein, from unnecessary government search.66 In support of this interpretation, Judge Kozinski cited Entick v. Carrington, an English common law case which would have been familiar to the Framers, which rejected ―the government‘s claim of unrestrained power to search personal papers‖ and held that the searches and seizures of documents violated English common law.67 According to his analysis, the prevailing view at the time of Entick was that a search of private papers was every bit as intrusive as a body search, which, if accurate, would indicate that the Framers intended individualized suspicion to be required to support a search of papers even at the border.68 Second, Judge Kozinski also distinguished Seljan from past Supreme Court precedent by characterizing the border search exception as a means to facilitate the interdiction of smuggled contraband.69 Thus, according to Judge Kozinski, the border search exception should be limited to the search of ―containers,‖ primarily for the purpose of uncovering contraband, and should not be applied to facilitate the search of expressive materials.70

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FEDERAL POLICIES ON BORDER LAPTOP SEARCHES Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) have issued directives outlining their policies and procedures regarding the border searches of laptops and other electronic devices. Both CBP and ICE are agencies within the Department of Homeland Security (DHS). CBP provides security at the U.S. borders and ports of entry by inspecting incoming persons and cargo in order to prevent the entry of certain individuals and goods, such as terrorists, unauthorized immigrants, contraband (i.e., illegal narcotics), and agricultural goods contaminated with pests or disease. ICE investigates individuals and criminal networks suspected of facilitating illegal activities such as unauthorized immigration, terrorism, and contraband smuggling.71 Both directives assert that CBP and ICE do not require any individualized suspicion to search laptops and other electronic devices at the border, and outline similar procedures regarding the handling of seized materials.72

Customs and Border Protection Policy U.S. Customs and Border Protection (CBP), the primary agency entrusted with border security, has released a ―Directive‖ outlining the procedures ―all CBP Officers, Border Patrol Agents, Interdiction Agents, Marine Interdiction Agents, and other employees authorized by law to perform searches at the border or the functional equivalent of the border, or the extended border‖ must follow when conducting border searches of laptops. This Directive, dated August 20, 2009, contains [g]uidance and standard operating procedures for searching, reviewing, retaining, and sharing information contained in computers, disks, drives, tapes, mobile phones and other communication devices, cameras, music and other media players, and any other electronic or

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digital devices, encountered by [CBP] at the border, both inbound and outbound, to ensure compliance with customs, immigration, and other laws that CBP is authorized to enforce.73

The Directive is limited to CBP‘s border search authority, and is not meant to limit CBP‘s authority to conduct other lawful searches at the border, such as those conducted pursuant to a warrant, consent, or incident to an arrest. It also is not intended to govern searches of commercial quantities of electronic devices (i.e., those transported in a shipping container).74 The Directive states that CBP officers may, with or without individualized suspicion, during the course of a border search examine an electronic device and analyze the information it contains. Furthermore, such searches should be conducted in the presence of the individual whose information is being examined unless ―there are national security, law enforcement, or other operational considerations‖ to render the individual‘s presence during the search inappropriate. However, the Directive contains a caveat that an individual‘s presence does not necessarily mean the individual can witness the search itself, and an individual will not be allowed to witness the search if ―law enforcement techniques or other operational considerations‖ stand to be compromised.75 The Directive also outlines procedures related to the search of privileged or other sensitive materials. Under the directive, legal materials, medical records, journalist workrelated information, and business or commercial information may all be subject to search.76 Legal materials are subject to special handling procedures. Specifically, if a CBP officer encounters legal materials he suspects may constitute evidence of a crime or otherwise pertain to a determination within the jurisdiction of CBP (e.g., customs searches or immigration inspection), the officer must first consult with the CBP Associate/Assistant Chief Counsel before searching the material.77 Medical records and journalist work-related information shall be handled in accordance with ―any applicable federal law and CBP policy.‖78 All business and commercial information encountered by CBP officers shall be treated as confidential and officers shall protect this information from unauthorized disclosures.79 If a CBP officer has questions related to the review of these categories of information, they may be directed to the CBP Associate/Assistant Chief Counsel.80 Detention and review policies are also dictated by the Directive. It states that an officer ―may detain electronic devices, or copies of information contained herein, for a brief, reasonable period of time to perform a thorough border search.‖81 This search may take place on-site or off-site and should not exceed five days.82 However, detentions may be extended by five days if approved by a Port Director, Patrol Agent in Charge, or other equivalent-level manager, and they can exceed 15 days if approved by ―the Director Field Operations, Chief Patrol Agent, Director, Air Operations, Director, Marine Operations, or other equivalent manager.‖ Thereafter, extensions may be approved and re-approved in increments of seven days.83 Furthermore, if review of the information reveals there is no probable cause to seize it, all copies of the information must be destroyed no later than seven days after the no probable cause determination is made, unless a supervisor approves an extension, which can last no longer than 21 days.84 The Directive also claims the right to use ―other federal agency analytical resources outside of CBP and ICE, such as translation, decryption, and subject matter expertise.‖85 Technical assistance (i.e., assistance in operating the electronic device for search or assistance

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in translating or decrypting the information), can be acquired from another federal agency without individualized suspicion. Assistance for ―subject matter expertise‖ from experts working in other federal agencies may be had only when there is reasonable suspicion of activities in violation of the laws enforced by CBP. The Directive states that reasonable suspicion may be based upon the presence of an individual on a government terrorist watch list.86 If probable cause arises after the border search of information, CBP officers are authorized to seize the electronic device being searched, or to make copies of the information from the device. If probable cause does not arise, ―CBP may retain only information relating to immigration, customs, and other enforcement matters if such retention is consistent with the privacy and data protection standards of the system of records in which such information is retained.‖87

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Immigration and Customs Enforcement Policy Immigration and Customs Enforcement (ICE), the agency responsible for ensuring compliance with the federal immigration and customs laws, issued a directive on August 18, 2009, outlining the agency‘s policy and procedures regarding ―the border search authority to search, detain, seize, retain, and share information contained in electronic devices possessed by individuals at the border, the functional equivalent of the border, and the extended border to ensure compliance with customs, immigration, and other laws enforced by ICE.‖88 The Directive asserts that ―ICE Special Agents acting under border search authority may search, detain, seize, retain, and share electronic devices, or information contained therein, with or without individualized suspicion ...‖89 The Directive states that consent is not needed to conduct a border search.90 However, ICE Special Agents should conduct border searches ―in the presence of, or with the knowledge of, the traveler‖ to the extent practicable.91 When not practicable, because of ―law enforcement, national security, or other operational concerns,‖ ICE Special Agents must note the circumstances in appropriate ICE systems.92 In addition, permitting an individual to be in the room where the search is conducted does not mean the individual will be allowed to witness the search. If allowing the individual to witness the search could reveal ―law enforcement techniques or potentially compromise other operational concerns,‖ the individual will not be permitted to witness the search.93 The Directive states that ―Special Agents are to complete the search of detained electronic devices, or copies of information therefrom, in a reasonable time given the facts and circumstances of the particular search‖ with the circumstances noted.94 Searches are ―generally‖ to be finished within 30 days of the date of detention, unless circumstances warrant extra time. Any detention exceeding the 30 calendar days must be approved by a Group Supervisor or equivalent, and approved every 15 calendar days thereafter, with the specific justification for additional time noted.95 The Directive outlines the procedures ICE Special Agents must use when seeking assistance from other federal agencies or non-federal entities. According to the procedure, Special Agents are ―responsible for ensuring that the results of the assistance are received in a reasonable time.‖96 Special assistance may be required when a Special Agent, during the

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course of a border search, encounters information in an electronic device that ―presents technical difficulties, is in a foreign language, and/or is encrypted.‖97 Special Agents may demand ―translation, decryption, and/or technical assistance‖ from other federal agencies or non-federal entities.98 This demand may be made without individualized suspicion.99 Special Agents may also encounter information that requires subject matter experts to determine whether the information is relevant to the laws enforced by ICE.100 This demand can be made when a Special Agent has reasonable suspicion that a law enforced by ICE is being violated.101 Special Agents may create and transmit copies of information to other federal agencies or non-federal entities for subject matter assistance. However, the original electronic devices should only be transmitted when necessary for the subject matter assistance.102 When a Special Agent determines there is probable cause of unlawful activity after reviewing information searched during a border search, the Special Agent may seize and retain both the device and the information.103 All retained information from electronic devices determined to be of no relevance to ICE will be destroyed within seven business days after the conclusion of the border search unless circumstances require more time. 104 All destructions must be accomplished no later than 21 calendar days after conclusion of the search.105 According to the Directive, ―all electronic devices crossing U.S. borders are subject to border search,‖ and a claim of privilege or personal information will not prevent the search. However, certain types of information are subject to special handling by ICE Special Agents.106 Business or commercial information is to be treated as business confidential information.107 Legal information and other information claimed to be protected by attorneyclient or attorney work privilege can be searched if the Special Agent suspects that the content of the information constitutes evidence of a crime or some other matter that falls within the jurisdiction of ICE. In such a case, the Special Agent must consult the ICE Office of the Chief Counsel or the appropriate U.S. Attorney‘s Office before beginning the search. Other sensitive information, such as medical records or journalist work-related information will be handled pursuant to federal law and ICE policy, and questions regarding such review, shall be directed to the ICE Office of the Chief Counsel.

CONCLUSION It is arguable that there is a higher expectation of privacy surrounding the contents of laptops than other types of physical property, such as vehicle interiors. Even when a vehicle search involves an onerous and time-consuming inspection of a gasoline tank, some would argue that the expectation of privacy surrounding the vehicle and its contents does not appear to be as high as the expectation of privacy regarding the contents of a laptop, which often contains private thoughts or other forms of privileged information. On the other hand, laptop searches are not considered by the courts as intrusive as strip or body-cavity searches, where the expectation of privacy surrounding one‘s body is considered higher.108 Although the Ninth Circuit in Arnold has analogized laptop searches to all other searches of personalty, other federal circuits may agree with Judge Kozinski in holding that the government owes greater deference to the privacy interest surrounding laptops.

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In addition to privacy interests, courts have taken a range of other concerns into account when determining whether reasonable suspicion must justify a warrantless border search. For example, when courts have conducted border search analyses, they have frequently considered potential harms resulting from illegal materials smuggled into the United States through laptops and electronic storage devices. As stated in Ramsey, ―The border search exception is grounded in the recognized right of the sovereign to control ... who and what may enter the country.‖109 Laptops can present a challenge to the nation‘s ability to control what enters its borders because the vast and compact storage capacity of laptops can be used to smuggle illegal materials. In light of this, courts have held that routine searches of laptops at the border may be justified because of the strong government interest in preventing the dissemination of child pornography and other forms of ―obscene‖ material that may be contained in laptops.110 Another justification may be to facilitate searches of laptops owned by suspected terrorists, which may contain information related to a planned terrorist attack.111 On the other hand, if customs officials can conduct laptop border searches without the need for reasonable suspicion, there is the potential for customs officials to conduct targeted searches based on justifications prohibited by the Constitution. For example, if a customs official could conduct a search without cause, it may be more difficult to detect unlawful bases for the searches because the official would not need to explain why he conducted the search. Such concerns suggest that resolving the issues surrounding laptop border searches will involve striking a careful balance between national security and civil liberties. The Ninth Circuit, by equating the privacy interest implicated in personal information with that surrounding normal personal effects, has adopted a categorical approach to the border search doctrine. The court has concluded that the search of all personal property does not require reasonable suspicion unless the search is conducted in a manner that is destructive or particularly offensive.112 So far, the Ninth Circuit is the only circuit to have explicitly stated that such searches do not require reasonable suspicion. Whether other federal circuits adopt this approach or, in the same vein as Judge Kozinksi, give credence to the notion that a heightened expectation of privacy surrounds expressive materials, thus requiring reasonable suspicion before being searched, is an open question.

LEGISLATIVE PROPOSALS A bill introduced in the 111th Congress, the Securing our Borders and our Data Act of 2009 (H.R. 239), would prohibit laptop searches based solely on border search authority.113 The legislation would establish ―fundamental rules‖ prohibiting a federal border officer from searching or seizing a ―digital electronic device‖ or ―electronic storage media‖ based solely on the power of the United States to search and seize the effects of individuals seeking entry into the country. Instead, the legislation would allow such searches only in cases where border officers have reasonable suspicion that a device contains criminal evidence. Devices could be seized only if constitutional authority other than border search authority provided a justification. The bill would direct the Secretary of Homeland Security to promulgate rules regarding: maximum time periods during which border officers can detain devices; owners‘ rights to retrieve detained devices; and strategies for maintaining the integrity of all information detained and shared with other government agencies.114

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The Border Security Search Accountability Act of 2009 (H.R. 1726) would mandate that the Commissioner of Customs and Border Protection promulgate a rule with respect to the scope of procedural and record-keeping requirements associated with border security searches of electronic devices.115 The rule would require that commercial information be handled in a manner consistent with all laws and regulations governing such information, that electronic searches be conducted in front of a supervisor, that a determination of the number of days such information could be retained without probable cause be made, that the individual whose information was seized be notified if the information is entered into an electronic database, that an individual receive a receipt if his device is seized during a border search, that an individual subject to a border search of an electronic device receive notice as to how he can report any abuses or concerns related to the search, that the rights of individuals with regard to border searches be posted at all ports of entry, that a privacy impact assessment of the rule be made, and that a civil rights impact assessment of the rule be made.116

End Notes 1

U.S. Const. Amend. IV. The Supreme Court has interpreted probable cause to mean ―a fair probability that contraband or evidence of a crime will be found in a particular place.‖ Illinois v. Gates, 462 U.S. 213, 238 (1983). See also Ornelas v. United States, 517 U.S. 690, 696 (1996). 3 Katz v. United States, 389 U.S. 347, 357 (1967) (―[S]earches conducted outside the judicial process without prior approval by judge or magistrate are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well delineated exceptions.‖). 4 For a more expansive treatment of the border search exception to the Fourth Amendment, see CRS Report RL31826, Protecting the U.S. Perimeter: Border Searches Under the Fourth Amendment, by Yule Kim. 5 See Act of July 31, 1789, ch. 5 §§23-24, 1 Stat. 29, 43 (authorizing customs officials ―full power and authority‖ to enter and search ―any ship or vessel, in which they shall have reason to suspect any goods, wares or merchandise subject to duty shall be concealed ...‖); Carroll v. United States, 267 U.S. 132, 153-154 (1925) (―Travellers may be so stopped in crossing an international boundary because of national self-protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in.‖). Accord Almeida-Sanchez v. United States, 413 U.S. 266 (1973); United States v. 12 200-Ft. Reels of Super 8mm. Film, 413 U.S. 123 (1973); United States v. Thirty-Seven (37) Photographs, 402 U.S. 363 (1971); Boyd v. United States, 116 U.S. 616 (1886). 6 431 U.S. 606, 619 (1977). 7 Id. at 622. 8 ―Reasonable cause to suspect‖ appears to be equivalent to ―reasonable suspicion,‖ which is simply a particularized and objective basis for suspecting the particular person of wrongdoing. See Terry v. Ohio, 392 U.S. 1, 21 (1978). 9 431 U.S. at 614. 10 Id. at 619 (―This longstanding recognition that searches at our borders without probable cause and without a warrant are nonetheless ‗reasonable‘ has a history as old as the Fourth Amendment itself.‖). 11 See United States v. Berisha, 925 F.2d 791, 795 (5th Cir. 1991) (extending the border search exception to routine outbound searches); United States v. Stanley, 545 F.2d 661, 667 (9th Cir. 1976), cert. denied, 436 U.S. 917 (1978); United States v. Ezeiruaku, 936 F.2d 136, 143 (3d Cir. 1991); United States v. Duncan, 693 F.2d 971, 977 (9th Cir. 1982); United States v. Ajlouny, 629 F.2d 830, 834 (2d Cir. 1980). 12 See Almeida-Sanchez v. United States, 413 U.S. 266, 272-273 (1973); United States v. Hill, 939 F.2d 934, 936 (11th Cir. 1991); United States v. Gaviria, 805 F.2d 1108, 1112 (2d Cir. 1986). In the context of international airports, the border search exception only applies to searches of persons and effects on international flights, whereas the administrative search exception, which applies to routine searches with purposes unrelated to law enforcement, is used to justify searches of persons and effects on domestic flights. See United States v. Davis, 482 F.2d 893, 908-912 (9th Cir. 1973). 13 473 U.S. 531, 541 (1985) (―We have not previously decided what level of suspicion would justify a seizure of an incoming traveler for purposes other than a routine border search.‖). 14 Id. at 535. 15 Id.

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Id. at 541 (―We hold that the detention of a traveler at the border, beyond the scope of a routine customs search and inspection, is justified at its inception if customs agents, considering all the facts surrounding the traveler and her trip, reasonably suspect that the traveler is smuggling contraband in her alimentary canal.‖). 17 See United States v. Flores-Montano, 541 U.S. 149, 154 citing Terry, 392 U.S. at 21 (―And in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.‖). 18 Montoya de Hernandez, 473 U.S. at 538 (―Routine searches of the persons and effects of entrants are not subject to any requirement of reasonable suspicion, probable cause, or warrant, and first-class mail may be opened without a warrant on less than probable cause.‖). 19 See United States v. Ezeiruaku, 936 F.2d 136 (3d Cir. 1991); Berisha, 925 F.2d 791. See also United States v. Chaplinksi, 579 F.2d 373 (5th Cir. 1978); United States v. Lincoln, 494 F.2d 833 (9th Cir. 1974); United States v. Chavarria, 493 F.2d 935 (5th Cir. 1974); United States v. King, 483 F.2d 353 (10th Cir. 1973). 20 541 U.S. 149, 154 (2004). 21 Id. (―It is difficult to imagine how the search of a gas tank, which should be solely a repository for fuel, could be more of an invasion of privacy than the search of the automobile‘s passenger compartment.‖). 22 See id. citing Terry, 392 U.S. at 21 (―And in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.‖). 23 See id. at 541 n. 4. 24 Id. (requiring ―reasonable suspicion‖ for the detention of a traveler at the border, beyond the scope of a routine customs search and inspection). See also Henderson v. United States, 390 F.2d 805 (9th Cir. 1967) (holding that strip searches may be conducted only upon a real suspicion); United States v. Adekunle, 980 F.2d 985 (5th Cir. 1992), on reh‘g, 2 F.3d 559 (5th Cir. 1993) (requiring reasonable suspicion to justify a strip search); United States v. Asbury, 586 F.2d 973, 975-976 (2d Cir. 1978) (requiring reasonable suspicion for strip searches); Rivas v. United States, 368 F.2d 703 (9th Cir. 1966) (requiring a clear indication of the possession of narcotics to justify an alimentary canal search). 25 Flores-Montano, 541 U.S. at 152. 26 See, e.g., United States v. Ickes, 393 F.3d 501, 505 (4th Cir. 2005); United States v. Romm, 455 F.3d 990, 997 (9th Cir. 2006); United States v. Irving, 452 F.3d 110, 123 (2d Cir. 2006) (―An airport is considered the functional equivalent of a border and thus a search there may fit within the border search exception.‖); United States v. Furukawa, No. 06-145, slip op. (D. Minn., November 16, 2006), 2006 U.S. Dist. LEXIS 83767; United States v. Hampe, No. 07-3- B-W, slip op. (D. Me., April 18, 2007), 2007 U.S. Dist. LEXIS 29218. 27 See, e.g., Irving, 452 F.3d at 124 (―Because these searches were supported by reasonable suspicion, we need not determine whether they were routine or non-routine.‖); Furukawa, slip op. at *1-2 (―[T]he court need not determine whether a border search of a laptop is ‗routine‘ for purposes of the Fourth Amendment because, regardless, the magistrate judge correctly found the customs official had a reasonable suspicion in this case.‖). 28 Ickes, 393 F.3d at 507 (noting that the computer search did not begin until the customs agents found marijuana paraphernalia and child pornography which raised a reasonable suspicion); Hampe, slip op. at *4-5 (holding that even though the laptop search did not implicate any of the serious concerns that would characterize a search as non-routine, the peculiar facts of the case gave rise to reasonable suspicion). 29 533 F.3d 1003, 1008 (2008) (―We are satisfied that reasonable suspicion is not needed for customs officials to search a laptop or other personal electronic storage device at the border.‖). 30 393 F.3d 501 (4th Cir. 2005). 31 Id. at 502. 32 Id. at 503. 33 Id. 34 Id. 35 Id. at 505. 36 Id. at 507. 37 Id. at 506. 38 455 F.3d 990 (9th Cir. 2006). 39 Id. at 994. 40 Id. 41 Id. 42 Id. 43 Id. at 997. 44 Id. at 996. 45 Id. 46 Id. 47 Id. at 997. 48 Id. (declining to consider the issue because arguments not raised by a party in its opening briefs are deemed waived).

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533 F.3d 1003 (9th Cir. 2008). Id. at 1005. 51 Id. 52 Id. 53 Id. 54 Id. at 1007. 55 Id. at 1007-1008. 56 Id. at 1009. 57 Id. 58 Id. at 1008. 59 Id. 60 Id. at 1010. 61 547 F.3d 993 (9th Cir. 2008). 62 Id. at 996. 63 Id. at 1003. 64 Id. at 1004. 65 Id. at 1014 (Kozinski, J., dissenting). 66 Id. at 1017-1019 (Kozinski, J., dissenting). 67 Id. at 1017 (Kozinksi, J., dissenting) citing Entick v. Harrington, 19 Howell‘s State Trials 1029, 95 Eng. Rep. 807 (1765). 68 Id. (Kozinski, J., dissenting). 69 Id. at 1016. (Kozinski, J., dissenting). 70 Id. at 1014-1015 (Kozinski, J., dissenting). 71 For more details on CBP and ICE, see generally CRS Report RS2 1899, Border Security: Key Agencies and Their Missions, by Chad C. Haddal. 72 Presumably, an individualized suspicion standard is synonymous with or perhaps even weaker than a reasonable suspicion standard. This is because the Supreme Court has rebuked the use by lower federal courts of standards of suspicion other than probable cause or reasonable suspicion. See Montoya de Hernandez, 473 U.S. at 541. 73 Border Search of Electronic Devices Containing Information, CBP Directive No. 3340-049, § 1 (August 20, 2009). 74 Id. at § 2 (August 20, 2009). 75 Border Search of Electronic Devices Containing Information, CBP Directive No. 3 340-049, § 5.1 (August 20, 2009). 76 Id. at § 5.2. 77 Id. at § 5.2.1. 78 Id. at § 5.2.2. 79 Id. at § 5.2.3. 80 Id. at §§ 5.2.2, 5.2.3. 81 Id. at § 5.3.1. 82 Id. 83 Id. at § 5.3.1.1. 84 Id. at § 5.3.1.2. 85 Id. at §5.3.2. 86 Id. 87 Id. at § 5.4. 88 Border Searches of Electronic Devices, ICE Directive No. 7-6.1, § 1.1 (August 18, 2009). 89 Id. at § 6.1. 90 Id. at § 8.1(3). 91 Id. at § 8.1(2). 92 Id. 93 Id. 94 Id. at § 8.3(1). 95 Id. 96 Id. at § 8.3(2). 97 Id. at § 8.4(1)(a). 98 Id. 99 Id. 100 Id. at § 8.4(2)(a). 101 Id. at § 8.4(2)(b). 102 Id. at § 8.4(4). 103 Id. at § 8.5(1)(a).

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Id. at § 8.5(1)(e). Id. 106 Id. at § 8.6(1). 107 Id. at § 8.6(2)(a). 108 Chase, 503 F.2d 571 (strip searches require reasonable suspicion); Montoya de Hernandez, 473 U.S. 531 (alimentary canal search justified by reasonable suspicion). 109 Ramsey, 431 U.S. at 611. 110 See, e.g., New York v. Ferber, 458 U.S. 747, 765 (1982) (holding that child pornography does not enjoy First Amendment protections because the government has a compelling state interest in preventing the sexual abuse of children and that the distribution of child pornography is intrinsically related to that state interest). 111 See Ickes, 393 F.3d at 506. 112 Arnold, 533 F.3d at 1007-1008. 113 The Securing our Borders and our Data Act of 2009, H.R. 239, 111th Cong. (2009). 114 This legislation is identical to a bill introduced during the 110th Congress. See Securing Our Borders and Our Data Act of 2008, H.R. 6702, 110th Cong. (2008). Another related bill introduced during the 110th Congress, H.R. 6588, would have prohibited laptop searches based on the United States‘ border search authority but permitted laptop searches conducted under any other federal authority. See Electronic Device Privacy Act of 2008, H.R. 6588, 110th Cong. (2008). 115 Border Security Search Accountability Act of 2009, H.R. 1726, 111th Cong. (2009). 116 This bill is similar to H.R. 6869, introduced in the 110th Congress, which would have directed the Department of Homeland Security to issue rules regarding the scope and procedural requirements associated with border security searches of electronic devices. See Border Security Search Accountability Act of 2008, H.R. 6869, 110th Cong. (2008).

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In: United States Border Issues Editor: Vivienne M. Clancy

ISBN: 978-1-61728-656-8 © 2010 Nova Science Publishers, Inc.

Chapter 6

PROTECTING THE U.S. PERIMETER: BORDER SEARCHES UNDER THE FOURTH AMENDMENT Yule Kim

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SUMMARY The Fourth Amendment requires that a search or seizure conducted by a governmental agent be reasonable and supported by probable cause. The Supreme Court has interpreted the Fourth Amendment to include a presumptive warrant requirement on all searches and seizures conducted by the government. Any violation of these requirements could result in the suppression of any information derived therefrom. The Supreme Court, however, has also recognized situations that render obtaining a warrant impractical or against the public‘s interest and has accordingly crafted various exceptions to the warrant and probable cause requirements of the Fourth Amendment. Few exceptions to the presumptive warrant and probable cause requirements are more firmly rooted than the ―border search‖ exception. Derived from the sovereign right to stop and examine persons and property crossing into the country, border searches allow customs officials the flexibility to inspect incoming individuals and their belongings and to interdict incoming contraband without having to inform a magistrate before the search. Border searches can also occur in places other than the actual physical border. Two different legal concepts authorize such searches: (1) searches at the functional equivalent of the border; and (2) extended border searches. These concepts allow federal officers to conduct border searches even in situations when it is not feasible to conduct the search at the actual point of entry (e.g., examining a person upon arrival at a U.S. airport rather than during a mid-flight crossing into the country). Courts have determined that border searches usually fall into two categories—routine and nonroutine—though this analysis may no longer apply to searches of vehicles or personal property. Generally, the distinction between ―routine‖ and ―non-routine‖ turns on the level of intrusiveness. Routine border searches are reasonable simply by virtue of the fact that they

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occur at the border and consist of only a limited intrusion, while non-routine searches generally require ―reasonable suspicion‖ and vary in technique and intrusiveness. This chapter first outlines the statutes authorizing certain federal officers to conduct warrantless searches: 19 U.S.C. § 482 for customs officials and Immigration and Nationality Act (INA) § 287 (codified in 8 U.S.C. § 1357) for immigration officers. It then addresses the scope of the government‘s constitutional authority to search and seize persons and property at the border. It also describes the varying levels of suspicion generally required for each type of border search as interpreted by the courts. Finally, this chapter lists several bills before the 111th Congress that address border searches: two of which, H.R. 239 (the Securing our Borders and our Data Act of 2009) and H.R. 1726 (the Border Security Search Accountability Act of 2009), address border searches of laptops and other electronic storage devices. H.R. 1900 would provide emergency deployments of federal officers to the border and would authorize funds to local law enforcement to stem the illegal trafficking of firearms into Mexico. S. 205, H.R. 495, and H.R. 1448 would also authorize funds for Bureau of Alcohol, Tobacco, Firearms, and Explosives agents to interdict the illegal trafficking of firearms to Mexico. This chapter does not address interior searches and seizures performed by immigration personnel since they are not traditional ―border searches.‖

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INTRODUCTION The United States‘ border policy seeks to balance the promotion of legitimate crossborder commerce and travel with its sovereign right to protect itself from terrorist activities, unlawful migration, and contraband. When formulating security initiatives regarding the border, officials must ensure that their search and seizure policies comply with the Fourth Amendment, which states: ―The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue but upon probable cause....‖ The Supreme Court has construed this language to impose a presumptive warrant requirement on all searches and seizures conducted by governmental authority. However, the Court has also recognized exceptions to the Fourth Amendment‘s warrant and probable cause requirements. One such exception is the ―border search‖ exception. Based on the inherent authority of a sovereign nation to regulate who and what comes within it borders, this exception renders border searches per se reasonable under the Fourth Amendment simply because they occur at the border. Because they are considered per se reasonable, border searches can usually be conducted without a warrant or probable cause. Federal courts have grouped border searches into two categories: routine and non-routine. Routine searches usually intrude into an individual‘s privacy in very limited ways. They generally consist of document checks, patdowns, or the emptying of pockets, and do not need to be justified by any suspicion of wrongdoing. Similarly, a government agent generally does not need suspicion of criminal activity before he may conduct limited inspections of cars and personal property at the border. On the other hand, government officials may conduct certain ―non-routine‖ searches at the border only if they have at least a ―reasonable suspicion‖ that the searched individual is

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smuggling contraband or conducting other illegal activities. ―Reasonable suspicion‖ means an officer has a particularized and objective basis for suspecting the searched individual of wrongdoing.1 Certain non-routine search procedures are perceived to intrude and have the potential to be embarrassing or destructive. In order to prevent their excessive use, courts have held that border agents must have at least a ―reasonable suspicion‖ of wrongdoing before they may conduct destructive searches of inanimate objects, prolonged detentions, strip searches, body cavity searches, X-ray searches, and the like. Whether reasonable suspicion is required is a fact-intensive totality of the circumstances test determined on a case-by-case basis. Although there was some federal circuit precedent to require more than reasonable suspicion to justify some acutely intrusive forms of non-routine border searches, the Supreme Court has since warned against developing further gradations of suspicion beyond reasonable suspicion.2 Thus, federal courts generally appear to apply only the reasonable suspicion standard when reviewing a non-routine border search. The Ninth Circuit appears to have refocused the border search analysis to presume that searches at the border do not require reasonable suspicion. Thus, the fact-intensive analysis used to determine whether reasonable suspicion is required may no longer be a central consideration in analyzing border searches. Rather, the Ninth Circuit, at least, begins with the presumption that most border searches do not require any suspicion of wrongdoing to be justified. If, however, the case at issue involves (1) an intrusive search of the body, (2) a particularly destructive search of property, or (3) a search conducted in a particularly offensive manner, the presumption would be rebutted and ―reasonable suspicion‖ would be required.

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STATUTORY AUTHORIZATION TO CONDUCT BORDER SEARCHES Two statutory provisions confer border search powers on agents of the United States: 19 U.S.C. § 482, which allows customs officials to conduct searches of persons, vehicles, and mail at the border; and Immigration and Nationality Act (INA) § 287, which gives immigration officers broad powers to interrogate, detain, and search individuals and vehicles. Both statutes have been interpreted such that these agents may conduct searches and arrests at the border without warrant or probable cause. However, the exercise of these powers still must comport with the requirements of the Fourth Amendment.3

Customs Officials Section 482 of Title 19 of the U.S. Code authorizes customs officials to conduct searches for unlawfully imported materials.4 This provision specifically confers upon those customs officials who are authorized to board and search sea vessels the additional power to search ―any vehicle, beast, or person‖ where they suspect they will discover goods subject to U.S. duties or goods whose importation is outlawed by the United States.5 Federal courts have interpreted this to mean that customs officials are empowered to search vehicles for aliens, as well as contraband.6 A customs official who exercises this authority to conduct a border

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search need not have a warrant or probable cause.7 However, border searches must still be ―reasonable‖ in light of the circumstances.8 Furthermore, customs officials may also search ―any trunk or envelope, wherever found,‖ in which they have ―reasonable cause to suspect‖9 there is merchandise imported contrary to law.10 The U.S. Supreme Court has interpreted ―any trunk or envelope‖ to include all international mail entering the United States.11 This means customs officials need not have probable cause, nor must they procure a warrant, to commence a search of a piece of international mail. 12 However, even though a customs official may conduct a border search of incoming international mail, the search is still ―subject to the substantive limitations imposed by the Constitution,‖ which is to say the Fourth Amendment‘s reasonableness requirement.13

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Immigration Officers Section 287 of the Immigration and Nationality Act (INA) expressly confers upon immigration officers14 broad powers to question and detain individuals without warrant either at the border or in the interior of the United States. For example, immigration officers may, without warrant, interrogate aliens about their right to be within the United States.15 They may also conduct some searches without a warrant. The INA expressly authorizes immigration officers, within ―a reasonable distance‖ from the external boundary of the United States, to search any land-based vehicle or conveyance, and any vessel within U.S. territorial waters.16 Immigration officers can also access without warrant any private lands located within 25 miles of the U.S. border, but not dwellings, for the purpose of patrolling for aliens illegally entering the United States.17 Moreover, the statute authorizes immigration officers to search, without warrant, a person and the personal effects in his possession, if the person seeks admission to the United States and the officer has reasonable cause to suspect that a search would disclose grounds for denying admission.18 Furthermore, immigration officers may arrest without warrant:     

any alien who, in the presence of the officer, is attempting to enter the United States in violation of the federal immigration laws;19 any alien who the officer has a reason to believe is an alien currently within the United States in violation of the federal immigration laws;20 any person for any felony regulating the admission or removal of aliens;21 any person for any offense against the United States committed in the presence of the officer;22 or any person for any felony if the officer has reasonable grounds to believe the person committed the felony, the arrest was made while the officer was performing duties relating to the enforcement of the federal immigration laws, there is a likelihood that the suspect would escape before a warrant can be obtained, and the officer is properly certified to make those types of arrests.23

Section 287 does not impose any specific limitations on any of the immigration officer‘s powers to search, interrogate, or arrest aliens without warrant.24 Nonetheless, an immigration United States Border Issues, Nova Science Publishers, Incorporated, 2009. ProQuest Ebook Central,

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officer‘s powers to search, interrogate, or arrest aliens without warrant are still subject to constitutional constraints, including the Fourth Amendment requirement that all searches and seizures (i.e., interrogations and arrests) be reasonable.25 As discussed below, the ―reasonableness‖ of a search, interrogation, or arrest varies depending on the circumstances, which include the justifications for the search, the scope, place, and manner of the search, and whether an appropriate exception to the Fourth Amendment applies.

THE FOURTH AMENDMENT The Fourth Amendment mandates that a search or seizure conducted by a government agent must be reasonable and that probable cause must support a warrant.26 Although the Supreme Court has interpreted this to mean that a warrant is presumptively required along with a need for individualized suspicion of wrongdoing,27 the Court has also recognized ―specifically established exceptions‖ to the warrant and probable cause requirements of the Fourth Amendment.28 However, before taking these exceptions into consideration, a Fourth Amendment analysis begins with this inquiry: (1) whether the government action was sufficiently intrusive to constitute a ―search‖ or ―seizure‖ and (2) whether the intrusion was ―reasonable‖ in light of the circumstances.29

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Searches A search triggers Fourth Amendment protections when (1) the individual personally held an expectation of privacy in the searched object or place and (2) society is willing to recognize that expectation as reasonable.30 In order for the expectation of privacy to be deemed reasonable, there must be some property law or social norm that signifies that the searched object or place is closed from public intrusion.31 For example, where the government uses a remote surveillance device not generally available for public use to explore physical activities within a ―constitutionally protected area‖ (e.g., a home), and that area would have been otherwise undetectable without some sort of physical intrusion, the surveillance is a ―search‖ and is presumptively unreasonable without a warrant.32

Seizures Property or individuals may be seized. The Supreme Court has described a seizure of property as ―some meaningful interference with an individual‘s possessory interests in that property.‖33 An individual is ―seized‖ when, in light of all the circumstances surrounding the incident, a government official makes a person reasonably believe that he is not at liberty to leave the official‘s presence.34 A seizure of a person, therefore, can include full arrests, investigatory detentions, checkpoint stops for citizenship inquiries, and detentions of a person against his will. However, if a person consents to be interviewed by an officer, that interview is not a ―seizure.‖35

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Detaining a suspect after a consensual interview does not violate the Fourth Amendment if, during the course of the interview, the officer finds sufficient cause to suspect that the person committed wrongdoing. But an officer cannot construe a person‘s refusal to be interviewed as sufficient cause to suspect wrongdoing.36 An immigration officer‘s questioning of an individual illustrates how an encounter which may appear to be a seizure is in fact not. Merely questioning an individual about his identity, regardless of whether he is aware he can leave the officer or refuse to cooperate by not answering, is not a seizure.37 Therefore, such questioning need not be predicated on reasonable suspicion that the individual is an alien. 38 Nonetheless, if ―the circumstances are so intimidating as to demonstrate that a reasonable person would have believed he was not free to leave if he had not responded,‖ then the encounter may be deemed a seizure.39 When the interview becomes a seizure, either through a formal arrest or when the circumstances are such that a reasonable person would understand he could not leave, the officer must, at a minimum, have ―a reasonable suspicion, based on articulable facts, that the person being questioned is, or is attempting to be, engaged in an offense against the United States or is an alien illegally in the United States.‖40

Reasonableness

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Determining whether a government action is ―reasonable‖ requires balancing the governmental interest justifying the intrusion against a person‘s legitimate expectation of privacy. When the government interest fails to justify its intrusion of a legitimate expectation of privacy, a violation of the Fourth Amendment occurs. This violation may result in any evidence derived from the unlawful search to be suppressed and excluded from a judicial proceeding. However, this ―exclusionary rule‖ does not generally apply in proceedings involving the removal of aliens from the United States.41

THE DEFINITION OF “BORDER ” Warrantless searches are per se unreasonable under the Fourth Amendment, unless an established exception applies. The border search is a well-recognized and long established exception to the Fourth Amendment‘s probable cause and warrant requirements. In general, the border is the point where entry into the United States is first made by land from the neighboring countries of Mexico or Canada, at the place where a ship docks in the United States after having been to a foreign port, and at any airport in the country where international flights first land. Authorities at these locations may search a person entering or leaving the country, an individual‘s automobile, baggage, or goods, and materials imported to and exported from the country.42 Authorized by the First Congress,43 the border search exception has a history older than the Fourth Amendment and derives from Congress‘s inherent authority to regulate commerce with foreign nations and to enforce immigration laws.44 The Fourth Amendment does not require warrants or probable cause for most stops and searches at the border because the power to control who or what comes within a nation‘s borders is an inherent attribute of national sovereignty.45

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Although border searches may generally be conducted without a warrant or probable cause, they must still be reasonable.46 Federal courts have determined that border searches usually fall into two categories—routine and non-routine, the distinction generally turning on the intrusiveness of the search. Routine border searches are reasonable simply by virtue of the fact that they occur at the border and consist of only a limited intrusion, while non-routine searches generally require reasonable suspicion and vary in technique and intrusiveness. It should be noted, however, that the Supreme Court has arguably suggested that the routine/non-routine analysis may no longer be appropriate for searches of vehicles and personal property.47

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Functional Equivalent of the Border The border search exception extends to those searches conducted at the ―functional equivalent‖ of the border. The ―functional equivalent‖ of a border is generally the first practical detention point after a border crossing or the final port-of-entry.48 Places such as international airports within the country and ports within the country‘s territorial waters or stations at the intersection of two or more roads extending from the border exemplify such functional equivalents.49 This doctrine addresses the problem posed by the impossibility of stopping an individual for inspection who is in mid-transit when crossing the physical border. By permitting searches at the functional equivalent of the border, the doctrine permits a search to be effected at the first practicable location, namely the port-of-entry. The reasoning is that the port-ofentry is, much like a border checkpoint, the place where an individual first enters the country, and thus a search for contraband at a port-of-entry is as effective as a search at the border. 50 A search at the border‘s functional equivalent is constitutionally valid when: (1) a reasonable certainty exists that the person or thing crossed the border; (2) a reasonable certainty exists that there was no change in the object of the search since it crossed the border; and (3) the search was conducted as soon as practicable after the border crossing.51 In general, when applying this test, courts have given the ―border‖ a geographically flexible reading because people can enter the country at points other than the actual border.52

Extended Border Search The border search exception may also allow warrantless searches beyond the border or its functional equivalent. Under the ―extended border search‖ doctrine, government officials may conduct a warrantless search beyond the border or its functional equivalent if (1) the government officials have a reasonable certainty53 that a border was crossed or there exists a ―high degree of probability‖ that a border was crossed; (2) they also have reasonable certainty that no change in the object of the search has occurred between the time of the border crossing and the search; and (3) they have ―reasonable suspicion‖ that criminal activity was occurring.54 This three-part test ensures that a significant temporal nexus still exists between the search and the suspect‘s border crossing.55

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The extended border search doctrine has gained wide acceptance among the federal courts because they deem that it strikes a sensible balance between the legitimate privacy interests of the individual and the societal interests in the enforcement of border security laws.56

The Distinction between the Functional Equivalent of a Border and the Extended Border Search Doctrines Although a search at the border‘s functional equivalent and an extended border search require similar elements, the extended border search entails a potentially greater intrusion on a legitimate expectation of privacy. Thus, an extended border search always requires a showing of ―reasonable suspicion‖ of criminal activity, while a search at the functional equivalent of the border may not require any degree of suspicion whatsoever. Another difference is that an extended border search takes place after the first point in time when an individual might have been stopped within the country.57 For example, in United States v. Teng Yang, the Seventh Circuit upheld an extended border search that occurred at an international airport but after the defendant had already undergone an initial inspection at the designated U.S. border inspection site. 58 The court determined that ―[i]t is the enforcement of the customs laws combined with the mandate of protecting the border of the United States that permits the extension of the search rights of border authorities to allow non-routine searches in areas near our nation‘s borders.‖59

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TYPES OF SEARCHES AND SEIZURES AT THE BORDER Courts have historically analyzed border searches based on whether they are ―routine‖ or ―non- routine.‖ However, this type of division may no longer be appropriate for vehicular searches. And at least one court appears to have extended this analysis to searches of electronic storage devices and other containers. The following sections examine how federal courts generally analyze border searches of persons, vehicles, and electronic storage devices.

Searches and Seizures of People Routine Searches In order to regulate the collection of duties and to prevent the introduction of illegal aliens and contraband into this country, Congress has granted the authority to conduct routine searches of persons and their personal belongings at the border without reasonable suspicion, probable cause, or a warrant.60 A routine border search is a search that does not pose a serious invasion of privacy or offend the average traveler.61 For example, a routine border search may consist of limited searches for contraband or weapons through a pat-down;62 the removal of outer garments such as jackets, hats, or shoes, the emptying of pockets, wallets, or purses;63

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the use of a drug-sniffing dog;64 the examination of outbound materials;65 and the inspection of luggage.66 It has long been established that border crossers‘ reasonable expectation of privacy is lower at the border because they generally expect border guards to search persons and property for contraband. Because this is common knowledge, border crossers are put on notice when approaching a border that a search may be imminent, and thus their privacy is ―less invaded by [border] searches‖ when they occur.67 Thus, routine searches do not violate the Fourth Amendment simply because they occur at the border.68 Moreover, courts consider routine border searches to be permissible because they are administered to a class of people (international travelers) and are not used to target individuals.69 There is no established test that determines whether a particular search procedure is routine. However, the degree of intrusiveness or invasiveness associated with the particular technique is especially indicative of whether a search is routine. The First Circuit, for example, compiled a nonexhaustive list of six factors to be considered: (1) whether the search required the suspect to disrobe or expose any intimate body parts; (2) whether physical contact was made with the suspect during the search; (3) whether force was used; (4) whether the type of search exposed the suspect to pain or danger; (5) the overall manner in which the search was conducted; and (6) whether the suspect‘s reasonable expectations of privacy, if any, were abrogated by the search.70

Non-Routine Searches Once a search of a person‘s body goes beyond a limited intrusion, a court may determine that a non-routine search has occurred. Non-routine border searches may include prolonged detentions, strip searches, body cavity searches, and some X-ray examinations.71 Destructive searches of property can also qualify as non-routine. At the very least, it appears courts require a government official to have a ―reasonable suspicion‖ of illegal activity to conduct a non-routine border search.72 The reasonable suspicion standard generally requires an officer at the border to have ―a particularized and objective basis for suspecting the particular person‖ of wrongdoing.73 For example, in United States v. Forbicetta, the court found reasonable suspicion to exist where Customs officials acted on the following objective facts: the suspect (1) arrived from Bogota, Colombia, (2) was traveling alone, (3) had only one suitcase and no items requiring Customs inspection, (4) was young, clean-looking, and attractive, and (5) was wearing a loose-fitting dress.74 These factors taken together matched the ―smuggling profile‖ for narcotic carriers in that area, and thus, the court concluded there was a sufficient basis to conduct the search. The Supreme Court has not enumerated the factors that should be considered when determining whether a border search is routine or non-routine.75 This task has generally been left to lower federal courts. However, in United States v. Montoya de Hernandez, the Supreme Court concluded that one such standard, a ―clear indication‖ of suspicion (i.e., a suggestion that is free from doubt), was not required by the Fourth Amendment to justify a prolonged detention in an airport.76 The Court determined that the use of the term ―clear indication‖ in its past jurisprudence was only meant to indicate the necessity for particularized suspicion, ―rather than as enunciating a third Fourth Amendment threshold between ‗reasonable suspicion‘ and ‗probable cause.‘‖77 Federal courts now view the Montoya de Hernandez reasoning as both a warning against using suspicion standards other than reasonable suspicion for non-routine border searches and a specific disavowal of the use

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of the ―clear indication‖ standard when analyzing a border search. 78 Although some courts had previously required a ―clear indication‖ to justify especially intrusive border searches other than prolonged detentions,79 courts generally construe the disavowal of this standard in Montoya de Hernandez to apply to other invasive border searches. ―Reasonable suspicion‖ is the standard used to justify non-routine searches.

Prolonged Detentions Prolonged detentions may be conducted in order to verify or dispel an agent‘s suspicion that a traveler has committed wrongdoing. In Montoya de Hernandez, someone from Bogota, Columbia, suspected of smuggling drugs in her alimentary canal, refused to consent to an Xray examination. In an attempt to verify or dispel their suspicions that she was engaged in criminal activity, Customs officers detained Ms. Montoya de Hernandez for over 16 hours and told her she could not leave until she eliminated the contents of her alimentary canal into a wastebasket. The Court determined ―that the detention of a traveler at the border, beyond the scope of a routine Customs search and inspection, is justified at its inception if Customs agents, considering all the facts surrounding the traveler and her trip, reasonably suspect that the traveler is smuggling contraband in her alimentary canal.‖80 The Court concluded that it was reasonable to detain Ms. Montoya de Hernandez for the period of time necessary to verify or dispel the suspicion of the agents in these circumstances. 81 Courts have reasoned that ―an otherwise permissible border detention does not run afoul of the Fourth Amendment simply because a detainee‘s intestinal fortitude leads to an unexpectedly long period of detention.‖ 82 However, the Fifth Circuit in United States v. Adekunle concluded that the government must, within a reasonable time (generally within 48 hours), seek a judicial determination that reasonable suspicion exists to detain a suspect for an extended period of time. 83 There appear to be no ―hard-and-fast time limits‖ that automatically transform what would otherwise be a routine search into a non-routine search, nor render a non-routine search conducted under the reasonable suspicion standard unconstitutional.84 Rather, courts consider ―whether the detention of [the traveler] was reasonably related in scope to the circumstances which justified it initially.‖85 In order to provide perspective, the 16-hour detention in Montoya de Hernandez was considered a non-routine search (justifiable by reasonable suspicions),86 while a one-hour vehicular search did not require reasonable suspicion.87 The Second Circuit has characterized four- to six-hour-long detentions of individuals suspected of having terrorist ties as routine.88 Strip Searches A strip search involves the removal of all or part of a suspect‘s clothing in order to effect a search. Because of the perceived offensiveness of the procedure due to the embarrassment it may inflict on the individual, reviewing courts generally require reasonable suspicion that the person is concealing contraband under his clothing before such a search is justified. 89 Often, in the course of a routine search, reasonable suspicion may arise to justify a subsequent strip search. For instance, in United States v. Flores, upon discovering 600 small undeclared emerald stones in the defendant‘s pockets during a routine search, Customs agents conducted a strip search and discovered an envelope of narcotics.90 The court held that the prior

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discovery of the undeclared emeralds was sufficient to heighten suspicion to the level necessary to conduct the strip search.91

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Body Cavity Searches Narcotics and other contraband have often been smuggled in the body cavities of travelers, and searches into such cavities have become more commonplace. Body cavity searches may include inspections of the vagina or rectum, or the use of emetics.92 Because of the extreme medical risks internal drug smuggling poses to the smuggler, courts have determined that body cavity searches and extraction of the drugs do not require the advance procurement of a search warrant from a magistrate.93 Nevertheless, a border official must have reasonable suspicion that an individual is attempting to smuggle contraband inside his body for a court to uphold a warrantless body cavity search.94 Additionally, the manner in which the body cavity search is conducted must also be reasonable in light of the circumstances. Generally, conduct that ―shocks the conscience‖ is inherently unreasonable.95 Such conduct has included use of a stomach pump96 and could potentially include medical procedures performed by nonmedical personnel.97 X-Ray Searches X-ray searches of the body have also been used at the border. They raise Fourth Amendment concerns because individuals normally have a heightened expectation of privacy with respect to their person.98 Because these searches do not constitute an actual physical invasion, however, the question becomes to what degree do X-ray searches intrude on this privacy? The answer seems to turn, in large part, on whether an involuntary X-ray search is more akin to a strip search and thus only requires a ―reasonable suspicion‖ for its application, or whether the intrusion is so great that it could potentially require a greater level of suspicion. In examining this issue, the Eleventh Circuit in United States v. Vega-Barvo determined that an X-ray search imposes only minimally on a person‘s dignity, less so than a strip search.99 In reaching this conclusion, the Vega-Barvo court examined (1) the physical contact between the searcher and the person searched, (2) the exposure of intimate body parts, and (3) the use of force.100 These factors helped the court examine the level of intrusiveness endured by the defendant and to conclude that the government agents, acting under a reasonable suspicion of illegal activity, properly detained and X-rayed the smuggler. The court reasoned that X-rays do not require physical contact or usually expose intimate body parts. The court also determined that ―an x-ray is one of the more dignified ways of searching the intestinal cavity.‖101 In general, other courts appear to agree with the Eleventh Circuit, likening X-ray searches to strip searches, and thus concluding that ―reasonable suspicion‖ is the level of suspicion necessary to conduct an X-ray examination.102 Cumulative Effect of Multiple Routine Searches Some have argued that subjecting an individual at the border to multiple routine searches during a period of detention can rise to the level of a non-routine search. This argument was raised in Tabbaa v. Chertoff, where the plaintiffs alleged that they were subjected to intrusive questioning, pat-down searches, the forcible spreading of their feet, and being fingerprinted and photographed, all in the course of a four- to six-hour period of detention at the border. 103

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The Second Circuit first noted that, based on prior case law, ―each of the individual elements of the searches was routine.‖104 However, even though the court did ―leave open the possibility that in some circumstances the cumulative effect of several routine search methods could render an overall search non-routine,‖ the court did not find this particular sequence of search methods to be non- routine. 105 The decisive factor in determining whether a search is non-routine, said the court, is ―the invasiveness of privacy‖ the search caused to the traveler, rather than the level of inconvenience. In this particular case, even taken collectively, the court found that the searches ―were routine in the border context, albeit near the outer limits of what is permissible absent reasonable suspicion.‖106 Thus, while in this particular circumstance, the series of searches was found to be routine, the Second Circuit left open the possibility that ―the cumulative effect of several routine searches‖ could rise to the level of a non-routine search.107

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Searches and Seizures of Vehicles Although federal courts had initially analyzed vehicular border searches by evaluating whether they were routine or non-routine, a 2004 decision by the Supreme Court appears to have placed this practice into question. In United States v. Flores-Montano, the Supreme Court found that the dignity and privacy interests that require reasonable suspicion for highly intrusive searches of the person do not apply to vehicles being examined at the border.108 Prior to Flores-Montano, federal courts had concluded that border searches of personal property involving the use of ―force‖ could be considered ―non-routine,‖ thus requiring reasonable suspicion in order to be justified under the Fourth Amendment.109 In this vein, courts found that drilling a hole into personal property, such as a container or a vehicle, to explore its interior made the searches non-routine.110 However, the Supreme Court in Flores-Montano held that a border search involving the dismantling, removal, and reassembly of a vehicle‘s fuel tank did not require reasonable suspicion. The Court, in its reasoning, relied on what it characterized as the United States‘ longstanding right as a sovereign ―to protect itself by stopping and examining persons and property crossing into [the] country....‖111 In light of the government‘s need to stem the flow of drugs smuggled across the United States‘ border, the Court determined that the ―inherent authority to protect, and a paramount interest in protecting, its territorial integrity‖ amply justified the search of the vehicle.112 Furthermore, in upholding the suspicionless search, the Court noted that the search at issue resulted in the vehicle ultimately being reassembled, which differs significantly from a potentially destructive search that involves drilling.113 The Court concluded that ―while it may be true that some searches of property are so destructive as to require a different result, this was not one of them.‖114 The Court, however, left open the question of ―whether, and under what circumstances, a border search might be deemed ‗unreasonable‘ because of the particularly offensive manner [in which] it is carried out.‖115 Thus, reasonable suspicion may not be presumptively required to justify invasive vehicle searches because they do not implicate the same privacy interest as invasive searches of the human body; however, especially destructive searches of vehicles, and perhaps other forms of personal property, may require reasonable suspicion.116

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Subsequently, federal courts have determined that the use of the routine/non-routine analysis for vehicular border searches has been ―specifically refuted‖ by Flores-Montano.117 These courts now rely on the reasoning of Flores-Montano to permit an array of search techniques on vehicles without requiring reasonable suspicion.118 In United States v. CortezRocha, for example, the Ninth Circuit held that reasonable suspicion was not required to justify the slashing of a vehicle‘s spare tire in order to search its interior.119 The court examined (1) the degree of damage inflicted on the vehicle and (2) any potential effect on the safety or security of the vehicle or its passengers. It then concluded that the ―disabling of a spare tire does not undermine the immediate safety of the vehicle or threaten the security of the vehicle‘s driver or passengers.‖120 Other Ninth Circuit border search cases have upheld the drilling of a single 5/16-inch hole in the bed of a pickup truck,121 the use of a radioactive density meter called a ―Buster‖ to search the inside of a spare tire,122 and the removal of an interior door panel. 123 In all of these cases, the court concluded that because safety was not compromised by the limited amount of damage inflicted on the vehicles, reasonable suspicion was not required. Concurring opinions, however, questioned whether the government needed a broad ―suspicionless‖ search argument to prevail in these cases when the results could have been sustained on the grounds that there was reasonable suspicion to support the searches.124

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Searches of Electronic Storage Devices A developing issue is whether, at the border, the Fourth Amendment permits warrantless searches of the contents of laptop computers and other electronic storage devices, and if it does, whether these searches are routine or non-routine.125 The U.S. Supreme Court has yet to address this matter. Some lower federal courts, however, have held that searches of laptops and other forms of electronic storage devices fall under the border search exception.126 Yet, these courts have also been far more reticent in determining whether these types of searches are routine or non-routine. Instead, they have found that reasonable suspicion supported the searches, and, thus, they did not reach the question.127 Even when a court has held that searches of electronic storage devices were routine, there has usually been an accompanying finding of reasonable suspicion to support the searches.128 The one exception is the Ninth Circuit, which has expressly held that reasonable suspicion is not required to support a border search of an electronic storage device.129 In United States v. Arnold, the Ninth Circuit, while disregarding the traditional routine/non-routine analysis following the Supreme Court‘s apparent rejection of such an analysis with respect to border searches of property, expressly held that reasonable suspicion was not required to support a border search of an electronic storage device.130 Rather than evaluate the circumstances of the search and consider the particular characteristics of electronic storage devices, the court described the search as that of a ―closed container.‖131 Applying a ―closed container‖ analysis, the court concluded that there was no material difference between a search of an electronic storage device and the search of a briefcase, purse, pocket, or pictures and film, and thus, like any border search of any ―closed container,‖ reasonable suspicion was not required. 132 According to the Ninth Circuit, the only two types of border searches of closed containers that would require reasonable suspicion are searches that involve ―exceptional damage of property‖ or searches conducted in a ―particularly

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offensive manner.‖133 The court, in its holding, expressly concluded that nothing about an electronic storage device, such as its large storage capacity or its ability to contain personal information, renders a search of its contents inherently offensive.134 Thus, the court held, border search at issue in Arnold did not require reasonable suspicion.135

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Searches of Expressive Materials Some have argued that border searches of letters, documents, and other forms of expressive content should require some form of individualized suspicion. This argument was raised before the Fourth Circuit in Ickes, where the defendant claimed that the suspicionless border search of his laptop was invalid because the First Amendment protects expressive content from at-will government perusal.136 The Fourth Circuit rejected this argument for three reasons: (1) recognizing an expressive content exception to the border search doctrine would insulate terrorist and criminal communications from search, (2) applying such an exception in the field would be impractical for border officers who would have to determine, ―on their feet,‖ whether the expressive content they wish to search is protected by the First Amendment, and (3) a First Amendment exception for border searches would create inconsistencies with Supreme Court precedent which states that a higher standard than probable cause is not needed for ordinary searches of expressive content. 137 This reasoning was later endorsed by the Ninth Circuit in Arnold, which expressly adopted the Fourth Circuit reasoning.138 Thereafter, the Ninth Circuit, en banc, reaffirmed this holding in United States v. Seljan, which upheld the suspicionless border search of a letter which solicited sex from a child residing in the Philippines. 139 This search was found constitutionally sound even though the scope of the statute authorizing the search of the package containing the letter was limited to the interdiction of undeclared currency transported across the United States‘ border. 140 Indeed, the Seljan majority specifically cited Ramsey, arguably the seminal case concerning the border search doctrine, in holding that ―[a]n envelope containing personal correspondence is not uniquely protected from search at the border.‖141 Moreover, the court found additional justification for the search by concluding that it was not unreasonable under the circumstances because the customs official did not ―read‖ the contents of the letter. Rather, he merely ―scanned‖ it with his eyes, which then gave rise to the reasonable suspicion of unlawful conduct that justified a more exacting examination of the letter‘s contents.142 Although most federal circuits addressing this issue have held that expressive materials are not exempt from the border search exception, forceful countervailing arguments have been made. For example, in his dissent in Seljan, Judge Alex Kozinski argued that the Fourth Amendment provides heightened protections for expressive materials at the border. 143 He made two arguments to support this proposition. The first is based on the Fourth Amendment‘s text, which contains a specific prohibition against the unreasonable search and seizure of ―papers.‖ Judge Kozinski argued that this specific prohibition signals the Framers‘ desire to insulate expressive content, and the personal thoughts contained therein, from unnecessary government search.144 In support of this interpretation, Judge Kozinski provided an analysis where he cited Entick v. Carrington, an important English common law case familiar to the Framers, which rejected ―the government‘s claim of unrestrained power to

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search personal papers‖ and held that the searches and seizures of documents violated English common law. 145 According to his analysis, the prevailing view at the time of Entick was that a search of private papers was every bit as intrusive as a body search, which, if accurate, would indicate that the Framers intended individualized suspicion to support a search of papers even at the border. 146 Second, Judge Kozinski also distinguished Seljan from past Supreme Court precedent by characterizing the border search exception as a means to facilitate the interdiction of smuggled contraband. 147 Thus, according to Judge Kozinski, the border search exception should be limited to the search of ―containers,‖ primarily for the purpose of uncovering contraband, and should not be applied to facilitate the search of expressive materials.148

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LEGISLATIVE ACTION ON BORDER SECURITY There are several bills before the 111th Congress that deal with border security. These bills follow several that were enacted in earlier Congresses and which significantly affected border security policy as recommended by the 9/11 Commission. The 9/11 Commission made several recommendations and observations in its Report for changes to U.S. border security operations. Most of these proposed changes involve enhancing the detection of travelers who would pose the United States harm and promoting cooperation between U.S. federal agencies and with foreign governments. The 9/11 Report emphasizes the importance of constraining and intercepting terrorist travel by using better technology and training to detect falsified documents.149 To accomplish this end, the Commission recommended: (1) creating a strategy to combine terrorist intelligence, operations and law enforcement; (2) integrating the U.S. border security system into a larger network of screening points; (3) implementing a biometric entry-exit screening system; and (4) enhancing international cooperation, particularly with Canada and Mexico, to raise global border security standards.150 Some of these recommendations, and others, were implemented by the 108th Congress in the 9/11 Intelligence Reform and Terrorism Prevention Act of 2004 (P.L. 108-458)—a compromise piece of legislation drawn from H.R. 10, the 9/11 Recommendations Implementation Act and S. 2845, the National Intelligence Reform Act of 2004 during conference. Subsequently, the 109th Congress passed the 9/11 Intelligence Reform law and the FY2005 Emergency Supplemental Appropriation Act for Defense, the Global War on Terror, and Tsunami Relief (P.L. 109-13), which calls on DHS to study the technology, equipment, and personnel needed to address security vulnerabilities near the U.S. borders and to develop a pilot program to utilize or increase the use of ground surveillance technologies (e.g., video cameras, sensor technology, motion detectors) on both the northern and southern borders. The 109th Congress also passed the Secure Fence Act of 2006 (P.L. 109-367), which requires the Secretary of DHS to take all actions the Secretary determines necessary to achieve and maintain operational control over the entire international land and maritime borders of the United States. The Secretary is to use systematic surveillance and physical infrastructure enhancements, including fencing, to achieve control of the border. The 110th Congress continued to address border security issues covered by the 9/11 Commission in the Implementing Recommendations of the 9/11 Commission Act of 2007.151 This law attempts to modernize and strengthen the visa waiver program in INA § 217 by

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enhancing program security requirements through an electronic travel authorization system to collect biographical information about passengers, and extending visa-free travel privileges to nationals of countries that are cooperating with the United States in its anti-terrorism campaign. The law also authorizes: (1) a Terrorist Travel Program to monitor terrorists and prevent their entry into the United States, (2) the creation of a ―model‖ port-of-entry program to help provide a more efficient and welcoming international arrival process at ports-of-entry, and (3) a pilot program to develop, with states, a machine-readable and tamper-proof driver‘s license that can be used for admission into the United States from either the Canadian or Mexican border. In the current Congress, several additional proposals relate to border security and may have the potential to implicate Fourth Amendment concerns. These include the following: 



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H.R. 1900 was introduced to provide emergency deployments of CBP, DEA, and ATF agents to the border and to authorize funds to local law enforcement to stem the illegal trafficking of firearms into Mexico. S. 205, H.R. 495, and H.R. 1448 would also authorize funds for ATF agents to interdict the illegal trafficking of firearms to Mexico. H.R. 239, the Securing our Borders and our Data Act of 2009, would prohibit searches of digital media devices based solely on the border search authority. Rather, border agents could only conduct searches of digital devices if they have reasonable suspicions of unlawful conduct. Border agents also would be prohibited from seizing digital devices based solely on their border search authority; some other undescribed constitutional authority would be required. H.R. 1726, the Border Security Search Accountability Act of 2009, would mandate that the Commissioner of Customs and Border Protection promulgate a rule with respect to the scope of and procedural and recordkeeping requirements associated with border security searches of electronic devices. The rule would require that (1) commercial information be handled in a manner consistent with all laws and regulations governing such information, (2) electronic searches be conducted in front of a supervisor, (3) the number of days commercial information could be retained without probable cause be determined, (4) the individual whose information was seized be notified if the information is entered into an electronic database, (5) an individual receive a receipt if his device is seized during a border search, (6) an individual subject to a border search of an electronic device receive notice as to how he can report any abuses or concerns related to the search, (7) the rights of individuals with regard to border searches be posted at all ports of entry, (8) that a privacy impact assessment of the rule be made, and (9) a civil rights impact assessment of the rule be made.

ACKNOWLEDGMENTS This chapter was originally prepared by Stephen R. Viña. Yule Kim has rewritten and updated the report and is available to answer questions about these issues.

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End Notes

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1

The reasonable suspicion standard requires less suspicion of wrongdoing than probable cause, the normal standard required for a Fourth Amendment search or seizure. See Terry v. Ohio, 392 U.S. 1, 21 (1968). 2 See infra ―Non-Routine Searches.‖ 3 Many of the nation‘s border security agencies or functions have been transferred to the Department of Homeland Security. See P.L. 107-296. When discussing case law, this chapter uses agency names as used in the case law, even if the agency may no longer have responsibilities at the border. 4 Act of July 18, 1866, ch. 201, § 3, 14 Stat. 178; R.S. § 3061 (codified at 19 U.S.C. § 482). 5 19 U.S.C. § 482. 6 United States v. Rivera, 595 F.2d 1095 (5th Cir. 1979); United States v. Bilir, 592 F.2d 735 (4th Cir. 1979). 7 United States v. Glaziou, 402 F.2d 8 (2d Cir. 1968); United States v. Berard, 281 F. Supp. 328 (D. Mass. 1968). 8 United States v. Montoya de Hernandez, 473 U.S. 53, 539 (1985) (―Having presented herself at the border for admission, and having subjected herself to the criminal enforcement powers of the Federal Government, respondent was entitled to be free from unreasonable search and seizure.‖). See also United States v. Bilir, 592 F.2d 735 (4th Cir. 1979); United States v. Bowman, 502 F.2d 1215 (1974). 9 Normally, reasonable cause is synonymous with probable cause. See Black‘s Law Dictionary 1219 (7th Ed. 1999). However, the Supreme Court interpreted ―reasonable cause to suspect‖ to be a less stringent requirement than probable cause. United States v. Ramsey, 431 U.S. 606, 6 12-13 (1977). Thus, in this context, ―reasonable cause to suspect‖ is more likely equivalent to ―reasonable suspicion.‖ 10 19 U.S.C. § 482(a). 11 Ramsey, 431 U.S. 606. 12 Id. at 612-13. 13 Id. at 619. 14 Although the statute speaks of ―immigration officers,‖ the Department of Homeland Security (DHS) designates by regulation those classes of DHS agents who actually wield these powers. See 8 C.F.R. § 287.5 for a list of officers who are authorized to wield the powers described in this section. Typically, both Border Patrol agents and Immigration and Customs Enforcement agents are empowered to wield all of these powers. 15 INA § 287(a)(1), 8 U.S.C. § 1357(a)(1) (authorizing any officer or employee ―to interrogate any alien or person believed to be an alien as to his right to be or remain in the United States‖ without obtaining a warrant). See also 8 C.F.R. § 287.5 (authorizing all immigration officers to exercise this power). 16 INA § 287(a)(3), 8 U.S.C. § 1357(a)(3). This statute also authorizes searches without warrant ―within a reasonable distance from any external boundary of the United States.‖ Reasonable distance is defined by 8 C.F.R. § 287. 1(a)(2) to mean ―within 100 air miles from any external boundary of the United States or any shorter distance which may be fixed by the chief patrol agent of CBP, or the special agent in charge of ICE.‖ External boundary is defined by 8 C.F.R. § 287. 1(a)(1) to mean ―the land boundaries and the territorial sea of the United States extending 12 nautical miles from the baselines of the United States determined in accordance with international law.‖ 17 Id. 18 INA § 287(c), 8 U.S.C. § 1357(c). 19 INA § 287(a)(2), 8 U.S.C. § 1357(a)(2) (authorizing any officer or employee ―to arrest any alien who in [the officer‘s] presence or view is entering or attempting to enter the United States in violation of any law or regulation made in pursuance of law regulating the admission, exclusion, expulsion, or removal of aliens‖ or ―arrest any alien in the United States, if [the officer] has reason to believe that the alien so arrested is in the United States in violation of any such law or regulation and is likely to escape before a warrant can be obtained for his arrest‖). 20 Id. 21 INA § 287(a)(4), 8 U.S.C. § 1357(a)(4) (authorizing any officer or employee ―to make arrests for felonies which have been committed and which are cognizable under any law of the United States regulating the admission, exclusion, expulsion or removal of aliens, if he has reason to believe that the person so arrested is guilty of such felony and if there is likelihood of the person escaping before a warrant can be obtained for his arrest‖). 22 INA § 287(a)(5)(A), 8 U.S.C. § 1357(a)(5)(A). 23 INA § 287(a)(5)(B), 8 U.S.C. § 1357(a)(5)(B). See also 8 C.F.R. § 287.5(c)(4). 24 See Zepeda v. INS, 753 F.2d. 719, 725-26 (9th Cir. 1983) (agreeing with the government‘s argument that § 287 authorized the interrogation of aliens under the fullest extent permissible under the Fourth Amendment). See also Babula v. INS, 665 F.2d 293 (3d Cir. 1981). 25 United States v. Brignoni-Ponce, 422 U.S. 873 (1975). See also United States v. Rogers, 436 F. Supp. 1 (E.D. Mich. 1976) (holding that the Fourth Amendment prohibits identification stops by roving patrols that are not based on articulable suspicion of illegal activity); Illinois Migrant Council v. Pilliod, 531 F. Supp. 1011 (N.D. Ill. 1982) (holding that the Fourth Amendment prohibits INS from conducting investigatory seizures based only on reasonable suspicion that a person seized is an alien).

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U.S. Const., Amend. IV. Katz v. United States, 389 U.S. 347, 357 (1967) (―[S]earches conducted outside the judicial process without prior approval by judge or magistrate are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well delineated exceptions.‖). 28 Camara v. Municipal Court, 387 U.S. 523, 539-540 (1967). 29 See Walter v. United States, 447 U.S. 649, 656 (1980) (noting that a wrongful search or seizure conducted by a private party does not violate the Fourth Amendment). 30 Katz, 389 U.S. at 361 (Harlan, J., concurring). See also Oliver v. United States, 466 U.S. 170, 177-78 (1984). 31 Minnesota v. Carter, 525 U.S. 83, 88 (1998). 32 Kyllo v. United States, 533 U.S. 27, 40 (2001). 33 Sodal v. Cook County, 506 U.S. 56, 61 (1992) quoting United States v. Jacobsen, 466 U.S. 109, 113 (1984). 34 Florida v. Bostick, 501 U.S. 429, 437 (1991) citing Michigan v. Chesternut, 486 U.S. 567, 573 (1988). See also United States v. Mendenhall, 446 U.S. 544 (1980); Brendlin v. California, 551 U.S. 249 (2007). 35 INS v. Delgado, 466 U.S. 210, 216 (1984). See also Florida v. Royer, 460 U.S. 491 (1983) (―Interrogation relating to one‘s identity or a request for identification by the police does not, by itself, constitute a Fourth Amendment seizure.‖). 36 Delgado, 466 U.S. at 216. 37 Id.; United States v. Rodriguez-Franco, 749 F.2d 1555, 1560 (11th Cir. 1985). See also 8 C.F.R. § 287.8(b)(1) (―An immigration officer, like any other person, has the right to ask questions of anyone as long as the immigration officer does not restrain the freedom of an individual, not under arrest, to walk away.‖). 38 Zepeda, 753 F.2d at 731. See also Cuevas-Ortega v. INS, 588 F.2d 1274 (9th Cir. 1979); Cordon de Ruano v. INS, 588 F.2d 1274 (9th Cir. 1977). 39 Delgado, 466 U.S. at 216. See also Zepeda, 753 F.2d at 730. 40 8 C.F.R. § 287.8(b)(2). 41 INS v. Lopez-Mendoza, 468 U.S. 1032, 1046 (1984). See also Mapp v. Ohio, 367 U.S. 643, 648 (1961) (exclusionary rule in general). But see Almeida-Amaral v. Gonzales, 461 F.3d 231, 234 (2d Cir. 2006) (―The [Supreme] Court qualified [Lopez-Mendoza]‘s ruling in two significant ways. First, it stated that its ‗conclusions concerning the exclusionary rule‘s value might change, if there developed good reason to believe that Fourth Amendment violations by [immigration] officers were widespread.‘ And, second, it explained that its holding did not necessarily pertain to circumstances involving ‗egregious violations of Fourth Amendment or other liberties that might transgress notions of fundamental fairness and undermine the probative value of the evidence obtained.‘‖). 42 See supra ―Statutory Authorization to Conduct Border Searches.‖ 43 Act of July 31, 1789, ch.5 §§ 23-24, 1 Stat. 29, 43 (current version at 19 U.S.C. §§ 482, 1582). 44 United States v. Ramsey, 431 U.S. 606, 619 (1977) (citing U.S. Const., Art. I, § 8, cl. 3). 45 See Ramsey, 431 U.S. at 616. 46 Marsh v. United States, 344 F.2d 317, 324 (5th Cir. 1965). 47 United States v. Flores-Montano, 541 U.S. 149 (2004). See infra ―Searches and Seizures of Vehicles.‖ 48 Thirty-First Annual Review of Criminal Procedure; Border Searches, 90 Geo. L.J. 1087, 1190 (2002) (9th Cir. 1973). 49 Almeida-Sanchez v. United States, 413 U.S. 266, 272-73 (1973). 50 See United States v. Hill, 939 F.2d 934, 936 (11th Cir. 1991). 51 Id. at 937. 52 Id. at 936 (―Because people can enter the country at points other than along the actual border, courts look to whether the point of entry is the functional equivalent of the border. Places such as international airports within the country and ports within the country‘s territorial waters exemplify such functional equivalents.‖). 53 Reasonable certainty, in the context of this test, has been defined as a standard which requires more than probable cause, but less than proof beyond a reasonable doubt. United States v. Cardenas, 9 F.3d 1139, 1148 (5th Cir. 1993). 54 See, e.g., United States v. Delgado 810 F.2d 480, 482 (5th Cir. 1987). In Delgado, smugglers used a foot-bridge to transfer narcotics to delivery trucks on a farm near El Paso, Texas. The court upheld an extended border search conducted on a farm road near and leading from the border, but not at the official border checkpoint. 55 United States v. Teng Yang, 286 F.3d. 940, 946 (7th Cir. 2002). 56 See, e.g., Teng Yang, 286 F.3d. 940; United States v. Sahanaja, 430 F.3d 1049 (9th Cir. 2005); United States v. Espinoza-Seanez, 862 F.2d 526 (5th Cir. 1989); United States v. Caicedo-Guarnizo, 723 F.2d 1420 (9th Cir. 1984); United States v. Garcia, 672 F.2d 1349 (11th Cir. 1982); United States v. Bilir, 592 F.2d 735 (4th Cir. 1979). 57 United States v. Niver, 689 F.2d 520, 526 (5th Cir. 1982). 58 286 F.3d. 940 (7th Cir. 2002). 59 Id. at 947. 60 See, e.g., 8 U.S.C. § 1357(c) (authorizing immigration officials to search without a warrant persons entering the country for evidence which may lead to the individual‘s exclusion); 19 U.S.C. § 1496 (authorizing customs

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officials to search the baggage of person entering the country); 19 U.S.C. § 1582 (authorizing customs officials to detain and search all persons coming into the United States from foreign countries). See also United States v. Montoya de Hernandez, 473 U.S. 531, 538 (1985). 61 United States v. Johnson, 991 F.2d 1287, 1291 (7th Cir. 1993). 62 See, e.g., United States v. Beras, 183 F.3d 22, 24 (1st Cir. 1999) (holding that a patdown of an international traveler‘s legs was not intrusive enough to qualify as non-routine). 63 United States v. Sandler, 644 F.2d 1163, 1169 (5th Cir. 1981). 64 United States v. Kelly, 302 F.3d 291, 294-95 (5th Cir. 2002) (sniff by a dog of a person at the border upheld as a routine border search); cf. United States v. Garcia-Garcia, 319 F.3d 726, 730 (5th Cir. 2003) (dog sniff of a person on a bus at an immigration checkpoint upheld and seen as analogous to a pat down). 65 United States v. Kolawole Odutayo, 406 F.3d 386, 392 (5th Cir. 2005) (joining sister circuits in holding that the border search exception applies for all outgoing searches at the border). 66 United States v. Okafor, 285 F.3d 842 (9th Cir. 2002) (finding an X-ray examination and subsequent probe of luggage a routine search because it requires no force, poses no risk to the bag‘s owner or to the public, causes no psychological fear, and does not harm the baggage); United States v. Lawson, 461 F.3d 697, 701 (6th Cir. 2006) (accepting the ―commonsense conclusion that customs officers may x-ray an airline passenger‘s luggage at the border without reasonable suspicion‖). 67 Gary N. Jacobs, Note, Border Searches and the Fourth Amendment, 77 Yale L.J. 1007, 1012 (1968). It should also be noted that the ―reasonable person‖ test presupposes an innocent person who has nothing to conceal from customs. Bostick, 501 U.S. at 437. 68 United States v. Odland, 502 F.2d 148 (7th Cir. 1974) citing Carroll v. United States, 267 U.S. 132, 153 (1925). Some courts have indicated a need for ―mere suspicion‖ to conduct a routine border search, which usually requires at least some knowledge identifying an individual as a suspect. See, e.g., Rodriguez-Gonzalez v. United States, 378 F.2d 256 (9th Cir. 1967) (also using the term unsupported suspicion). This standard, however, is an inaccurate articulation of the general rule that no suspicion is required. See Odland, 502 F.2d at 151 (―Any person or thing coming into the United States is subject to search by that fact alone, whether or not there be any suspicion of illegality directed to the particular person or thing to be searched.‖); Bradley v. United States, 299 F.3d 197, n.7 (3d Cir. 2002) (stating ―mere suspicion‖ standard effectively overruled by Montoya de Hernandez). 69 77 Yale L.J. 1007, 1012 (1968). 70 United States v. Braks, 842 F.2d 509, 511-12 (1st Cir. 1988). The Braks court concluded that only strip searches and body cavity searches are consistently non-routine. 71 See, e.g., United States v. Reyes, 821 F.2d 168, 170-71 (2d Cir. 1987) (strip search); United States v. Oyekan, 786 F.2d 832, 837 (8th Cir. 1986) (strip search); United States v. Adekunle, 2 F.3d 559, 562 (5th Cir. 1993) (continued detention and X-ray examination of alimentary canal); United States v. Rivas, 157 F.3d 364, 367 (5th Cir. 1998) (drilling of hole into body of automobile). 72 Montoya de Hernandez, 473 U.S. at 541; United States v. Garcia-Garcia, 319 F.3d 726, 730 (5th Cir. 2003) (an alert by a drug sniffing dog provided reasonable suspicion to detain a bus long enough to investigate the reason for the dog‘s response). 73 See Montoya de Hernandez, 473 U.S. at 541 citing Terry, 392 U.S. at 21 (―And in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.‖). 74 484 F.2d 645 (5th Cir. 1973). But see Reid v. Georgia, 448 U.S. 438, 441(1980) (rejecting the argument that arrival from a source location could, by itself, provide reasonable suspicion). 75 See Montoya de Hernandez, 473 U.S. at 541 n.4. 76 Id. at 541. 77 Id. at 540. 78 See, e.g., United States v. Charleus, 871 F.2d 265, 268 n.2 (2d Cir. 1989); United States v. Oyekan, 786 F.2d 832, 837-39 (8th Cir. 1986); Bradley v. United States, 299 F.3d 197, 202-04 (3d Cir. 2002). United States v. Aguebor, 1999 U.S. App. Lexis 25, at *9 (4th Cir. January 4, 1999) (This unpublished opinion is cited merely as an example and is not intended to have precedential value.). 79 See, e.g., United States v. Ramos-Saenz, 36 F.3d 59, 61 (9th Cir. 1994) (requiring the higher ―clear indication‖ standard for a body cavity search); United States v. Ek, 676 F.2d 379, 382 (9th Cir. 1982) (requiring a ―clear indication‖ for X-ray search). 80 Montoya de Hernandez, 473 U.S. at 541. See also United States v. Esieke, 940 F.2d 29 (2d Cir. 1991) (court upheld a detention of one and half days before first bowel movement and another two and half days until all balloons were expelled); United States v. Yakubu, 936 F.2d 936 (7th Cir. 1991) (16-hour detention upheld after refusal to be X-rayed). 81 Montoya de Hernandez does not stand for a ―detention until defecation‖ proposition. The court narrowly decided that the particular detention ―was not unreasonably long‖ under ―these circumstances.‖ In fact, the agents expected Ms. Montoya de Hernandez to produce a bowel movement without extended delay because she had

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just disembarked from a 10-hour flight. 4 Wayne R. LaFave, Search and Seizure, A Treatise on the Fourth Amendment § 10.5(b), 546 (3d ed. 1996 & Supp. 2003). 82 Esieke, 940 F.2d at 35. 83 2 F.3d 559, 562 (5th Cir. 1993). The court opined that a formal determination is not necessary; rather, an informal presentation of the evidence supporting the government‘s suspicion before a neutral and detached judicial officer satisfies this requirement. Furthermore, the court concluded that the failure to obtain such a judicial determination within 48 hours shifts the burden to the government to demonstrate a bona fide emergency justifying the extended detainment. 84 See Tabbaa v. Chertoff, 509 F.3d 89, 99 (2d Cir. 2007) (quoting Montoya de Hernandez, 473 U.S. at 543). 85 Tabbaa, 509 F.3d at 99. 86 Montoya de Hernandez, 473 U.S. at 535. 87 Flores-Montano, 541 U.S. at 151. 88 Tabbaa, 509 F.3d at 99. 89 United States v. Chase, 503 F.2d 571 (9th Cir. 1974). 90 477 F.2d 608 (1st Cir. 1973). 91 Id. 92 See, e.g., United States v. Ogberaha, 771 F.2d 655, 657 (2d Cir. 1985) (vagina); United States v. Pino, 729 F.2d 1357, 1358 (11th Cir. 1984) (rectum); United States v. Briones, 423 F.2d 742, 743 (5th Cir. 1970) (emetics). 93 See, e.g., United States v. Sosa, 469 F.2d 271 (9th Cir. 1972) (no warrant for rectal probe); United States v. Mason, 480 F.2d 563 (9th Cir. 1973) (no warrant for vaginal probe); United States v. Briones, 423 F.2d 742 (5th Cir. 1970) (no warrant for administration of an emetic). But see United States v. Holtz, 479 F.2d 89 (9th Cir. 1973) (Ely, J., dissenting); Blefare v. United States, 362 F.2d 870 (9th Cir. 1966) (Ely, J., dissenting). 94 See, e.g., United States v. Ogberaha, 771 F.2d 658 (2d Cir. 1985); Swain v. Spinney, 117 F.3d 1, 7 (1st Cir. 1997) (only required reasonable suspicion for visual body cavity search); United States v. Gonzalez-Ricon, 36 F.3d 859, 864 (9th Cir. 1984) (noting in dictum that a body cavity search must be supported by reasonable suspicion). Due to the intrusiveness of alimentary canal searches, some courts had required a ―clear indication‖ (a suggestion that is free from doubt) of alimentary canal smuggling to justify the search. See, e.g., United States v. Ramos-Saenz, 36 F.3d 59, 61 (9th Cir. 1994) (affirming clear indication standard). But since the Supreme Court expressed its disapproval of suspicion standards other than ―reasonable suspicion‖ in Montoya de Hernandez, courts have been unwilling to adopt the ―clear indication‖ standard for body cavity searches. See, e.g., United States v. Ogberaha, 771 F.2d 658 (2d Cir. 1985); Swain v. Spinney, 117 F.3d 1, 7 (1st Cir. 1997) (only required reasonable suspicion for visual body cavity search); United States v. Bravo, 295 F.3d 1002 (9th Cir. 2002) (noting in dictum that a body cavity search must be supported by reasonable suspicion). 95 Rochin v. California, 342 U.S. 165 (1952). 96 Id. 97 Rectal searches have been upheld when conducted by medical personnel using accepted and customary medical techniques in medical surroundings. See, e.g., Rivas v. United States, 368 F.2d 703 (9th Cir. 1966) (upholding rectal search by a doctor at doctor‘s office). 98 United States v. Vega-Barvo, 729 F.2d 1341, 1345-46 (11th Cir. 1984). 99 Id. 100 Id. at 1346. 101 Id. at 1348. 102 See supra ―Non-Routine Searches.‖ Although some courts had previously required the more stringent ―clear indication‖ standard for X-ray searches, ever since the Supreme Court denounced ―clear indication‖ in Montoya de Hernandez, courts now generally analogize X-rays with strip searches and only require reasonable suspicion. Compare United States v. Ek, 676 F.2d 379, 382 (9th Cir. 1982) (determining that while an X-ray search may not be as humiliating as a strip search, ―it is more intrusive since the search is potentially harmful to the health of the suspect‖) with United States v. Oyekan, 786 F.2d 832, 837 (8th Cir. 1986) (requiring reasonable suspicion for X-ray search); United States v. Pino, 729 F.2d 1357, 1359 (11th Cir. 1984) (X-ray search equal to strip search). 103 509 F.3d 89, 99 (2d Cir. 2007). 104 Id. 105 Id. 106 Id. 107 Id. 108 United States v. Flores-Montano, 541 U.S. 149, 152 (2004) (―Complex balancing tests to determine what is a ‗routine‘ search of a vehicle, as opposed to a more ‗intrusive‘ search of a person, have no place in border searches of vehicles.‖). 109 See, e.g., United States v. Robles, 45 F.3d 1, 5 (1st Cir. 1995). 110 Id. (drilling a hole into a metal cylinder transported to an airport on an international flight was a non-routine search); United States v. Rivas, 157 F.3d 364, 367 (5th Cir. 1998) (drilling a hole into a tractor-trailer‘s frame was a non-routine search); United States v. Carreon, 872 F.2d 1436, 1440-41 (10th Cir. 1989) (implicitly

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requiring that drilling a hole into a camper wall in order to effect a search of its interior required reasonable suspicion to be justified). 111 Id. at 152-53 quoting Ramsey, 431 U.S. at 616. 112 Id. at 153. 113 Id. at 155, n.2 (citing Rivas, 157 F.3d 364 (5th Cir. 1998) (drilling into body of trailer required reasonable suspicion); United States v. Robles, 45 F.3d 1 (1st Cir. 1995) (drilling into machine part required reasonable suspicion); United States v. Carreon, 872 F.2d 1436 (10th Cir. 1989) (drilling into camper required reasonable suspicion). 114 Flores-Montano, 541 U.S. at 155-156. 115 Id. at 155, n.2. 116 Flores-Montano, 541 U.S. at 155-156; United States v. Bennett, 363 F.3d 947, 951 (9th Cir. 2004). Cf. Okafor, 285 F.3d at 846 (qualifying its holding by stating that a suspicionless X-ray search of luggage may be done at the border ―[s]o long as the means of examination are not personally intrusive, do not significantly harm the objects scrutinized, and do not unduly delay transit‖). 117 United States v. Cortez-Rocha, 394 F.3d 1115, 1119 (9th Cir. 2005). 118 Flores-Montano, 424 F.3d at 1049, n.6 (This case dealt with the same defendant as the Supreme Court case but posed a different legal question.). See also Cortez-Rocha, 394 F.3d at 1119; United States v. Chaudhry, 424 F.3d 1051, 1054 (9th Cir. 2005). 119 Cortez-Rocha, 394 F.3d 1115. 120 Id. at 1119-1120. 121 United States v. Chaudhry, 424 F.3d 1051, 1053 (9th Cir. 2005). 122 United States v. Camacho, 368 F.3d 1182 (9th Cir. 2004). The Ninth Circuit in this case distinguished prior precedent (Ek, 676 F.2d 379) requiring a heightened level of suspicion for X-ray searches of persons because such searches were potentially harmful to the health of the suspect, whereas the ―Buster‖ search was not harmful to motorists. 123 United States v. Hernandez, 424 F.3d 1056 (9th Cir. 2005). 124 Chaudhry, 424 F.3d at 1054-1055 (Fletcher, J., concurring) (―In each case, the government chose to create a dispute where none existed, rather than to prove up its officers‘ valid suspicions.‖); (Fisher, J. concurring) (―I am troubled by the government‘s evident decision in this and other cases to eschew reliance on dog alerts or other evidence supporting reasonable suspicion.‖) Id. at 1055. 125 See CRS Report RL34404, Border Searches of Laptop Computers and Other Electronic Storage Devices, by Yule Kim, Border Searches of Laptop Computers and Other Electronic Storage Devices, by Yule Kim for an in-depth analysis of this issue. 126 See, e.g., United States v. Ickes, 393 F.3d 501, 505 (4th Cir. 2005); United States v. Romm, 455 F.3d 990, 997 (9th Cir. 2006); United States v. Irving, 452 F.3d 110, 123 (2d Cir. 2006); United States v. Furukawa, No. 06145, slip op. (D. Minn., November 16, 2006), 2006 U.S. Dist. LEXIS 83767; United States v. Hampe, No. 073-B-W, slip op. (D. Me., April 18, 2007), 2007 U.S. Dist. LEXIS 29218. 127 See, e.g., Irving, 452 F.3d at 124 (―Because these searches were supported by reasonable suspicion, we need not determine whether they were routine or non-routine.‖); Furukawa, supra (―[T]he court need not determine whether a border search of a laptop is ‗routine‘ for purposes of the Fourth Amendment because, regardless, the magistrate judge correctly found the customs official had a reasonable suspicion in this case.‖). 128 Ickes, 393 F.3d at 507 (noting that the computer search did not begin until the custom agents found marijuana paraphernalia and child pornography which raised a reasonable suspicion); Hampe, supra (holding that even though the laptop search did not implicate any of the serious concerns that would characterize a search as nonroutine, that the peculiar facts of the case gave rise to reasonable suspicions). 129 United States v. Arnold, 533 F.3d 1003 (9th Cir. 2008). 130 Id. at 1008. 131 Id. at 1007. 132 Id. 133 Id. at 1007-08. 134 Id. at 1009-10. 135 As a side note, even though these cases usually arise in child pornography prosecutions, there are national security implications involved as well. For example, one of the justifications given for not requiring probable cause to conduct a laptop search is that to do so would enable terrorists to smuggle potentially incriminating information on electronic media without fear of it being searched. Ickes, 393 F.3d at 506. Another potential issue that might arise is the possibility that the search power could be abused if an officer does not need to provide an articulable reason for his search. 136 Id. at 507-08. 137 Id. at 506-07 citing New York v. P.J. Video, 475 U.S. 868, 874 (1986). See also United States v. 37 Photographs, 402 U.S. 363, 376 (1974) (finding that particularized suspicion not required for searches of pictures, films and other graphic materials); United States v. 12,200 Feet Reels of Super 8mm Film, 413 U.S. 128, 124-25 (1973). 138 Arnold, 533 F.3d at 1010.

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547 F.3d 993, 996 (9th Cir. 2008). Id. at 996 (citing 31 U.S.C. § 5317(b)). 141 Id. at 1003. 142 Id. at 1004. 143 Id. at 1014 (Kozinski, J., dissenting). 144 Id. at 1017-19 (Kozinski, J., dissenting). 145 Id. at 1017 (Kozinksi, J., dissenting) (citing Entick v. Harrington, 19 Howell‘s State Trials 1029, 95 Eng. Rep. 807 (1765)). 146 Id. (Kozinski, J., dissenting). 147 Id. at 1016. (Kozinski, J., dissenting). 148 Id. at 1014-15 (Kozinski, J., dissenting). 149 The 9/11 Commission Report: Final Report on the National Commission on Terrorist Attacks Upon the United States, p. 385 (Official Gov‘t Ed. 2004). 150 Id. at 385-390. 151 Implementing Recommendations of 9/11 Commission Act of 2007, P.L. 110-53, 121 Stat. 266.

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Chapter 7

BORDER SECURITY: BARRIERS ALONG THE U.S. INTERNATIONAL BORDER Chad C. Haddal, Yule Kim and Michael John Garcia

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SUMMARY Congress has repeatedly shown interest in examining and expanding the barriers being deployed along the U.S. international land border. The United States Border Patrol (USBP) deploys fencing, which aims to impede the illegal entry of individuals, and vehicle barriers, which aim to impede the illegal entry of vehicles (but not individuals) along the border. The USBP first began erecting physical barriers in 1990 to deter illegal entries and drug smuggling in its San Diego sector. The ensuing 14-mile-long San Diego ―primary fence‖ formed part of the USBP‘s ―Prevention Through Deterrence‖ strategy, which called for reducing unauthorized migration by placing agents and resources directly on the border along population centers in order to deter would-be migrants from entering the country. In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act which, among other things, explicitly gave the Attorney General (now the Secretary of the Department of Homeland Security) broad authority to construct barriers along the border and authorized the construction of a secondary layer of fencing to buttress the completed 14-mile primary fence. Construction of the secondary fence stalled due to environmental concerns raised by the California Coastal Commission. In 2005, Congress passed the REAL ID Act that authorized the Secretary of the Department of Homeland Security (DHS) to waive all legal requirements in order to expedite the construction of border barriers. DHS has announced it will use this waiver authority to complete the San Diego fence. The Secure Fence Act of 2006 directed DHS to construct 850 miles of additional border fencing. This requirement was subsequently modified by the Consolidated Appropriations Act, 2008 (P.L. 110-161), which was enacted into law on December 26, 2007. The Act requires the Secretary of Homeland Security to construct fencing along not fewer than 700 miles of the southwest border.

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While the San Diego fence, combined with an increase in agents and other resources in the USBP‘s San Diego sector, has proven effective in reducing the number of apprehensions made in that sector, there is considerable evidence that the flow of illegal immigration has adapted to this enforcement posture and has shifted to the more remote areas of the Arizona desert. Nationally, the USBP made 1.2 million apprehensions in 1992 and again in 2004, suggesting that the increased enforcement in San Diego sector has had little impact on overall apprehensions. In addition to border fencing, the USBP deploys both permanent and temporary vehicle barriers to the border. Temporary vehicle barriers are typically chained together and can be moved to different locations at the USBP‘s discretion. Permanent vehicle barriers are embedded in the ground and are meant to remain in one location. A number of policy issues concerning border barriers generally and fencing specifically may be of interest to Congress, including, but not limited, to their effectiveness, costs versus benefits, location, design, environmental impact, potential diplomatic ramifications, and the costs of acquiring the land needed for construction.

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BACKGROUND Within the Department of Homeland Security‘s (DHS‘s) Customs and Border Protection (CBP), the U.S. Border Patrol (USBP) is charged with securing our nation‘s land and maritime borders between official ports of entry (POE) to deter and interdict terrorists, weapons of mass destruction, and aliens attempting to enter the country unlawfully. In order to discharge its duties, the USBP deploys personnel, technology, and tactical infrastructure such as vehicle barriers and fencing. Fencing is erected on the border to impede the illegal entry of unauthorized aliens, while vehicle barriers are designed to impede the entry of vehicles but do not impede the entry of individuals. This chapter will analyze the barriers that are currently being constructed and maintained along the border by the USBP, including historical and future cost estimates and the policy issues involved. Because the current debate has largely focused on the deployment of fencing to the border, this chapter will focus on the policy issues surrounding the construction of border fencing. However, information concerning the kinds of vehicle barriers being deployed at the border will be provided where available. Using the broad powers granted to the Attorney General (AG) to control and guard the U.S. border,1 the USBP began erecting a barrier known as the ―primary fence‖ directly on the border in 1990 to deter illegal entries and drug smuggling in its San Diego sector.2 The San Diego fence formed part of the USBP‘s ―Prevention Through Deterrence‖ strategy,3 which called for reducing unauthorized migration by placing agents and resources directly on the border along population centers in order to deter would-be migrants from entering the country. The San Diego primary fence was completed in 1993, covering the first 14 miles of the border from the Pacific Ocean. The fence was constructed of 10-foot-high welded steel army surplus landing mats4 with the assistance of the Corps of Engineers and the California National Guard. In addition to the 14 miles of primary fencing erected in its San Diego sector, the USBP maintains stretches of primary fencing in several other sectors along the southwest border, including Campo, CA; Yuma, AZ; Nogales, AZ; Naco, AZ; Douglas, AZ; and El Paso, TX.

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In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which, among other things, explicitly gave the Attorney General broad authority to construct barriers along the border and authorized the Immigration and Naturalization Service (INS) to construct a secondary layer of fencing to buttress the completed 14-mile primary fence.5 Construction of the secondary fence stalled after 9.5 miles had been completed due to environmental concerns raised by the California Coastal Commission (CCC). In 2005, Congress passed the REAL ID Act, which, among other things, authorized the Secretary of the Department of Homeland Security (DHS) to waive all legal requirements to expedite the construction of border barriers.6 In 2006, Congress passed the Secure Fence Act, which, among other things, directed DHS to construct five separate stretches of fencing along the southern border, totaling 850 miles.7 This requirement was modified by provisions in Division E of H.R. 2764, the Consolidated Appropriations Act, 2008 (P.L. 110-161), which was enacted into law on December 26, 2007. The Secretary of Homeland Security is now required to construct reinforced fencing along not fewer than 700 miles of the southwest border, in locations where fencing is deemed most practical and effective. In addition to border fencing, the USBP deploys both permanent and temporary vehicle barriers at the border. Vehicle barriers are meant to stop the entry of vehicles, but not people, into the United States. Temporary vehicle barriers are typically chained together and can be moved to different locations at the USBP‘s discretion. Permanent vehicle barriers are embedded in the ground and are meant to remain in one location.

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THE SAN DIEGO BORDER PRIMARY FENCE The USBP‘s San Diego sector extends along the first 66 miles from the Pacific Ocean of the international border with Mexico, and covers approximately 7,000 square miles of territory. Located north of Tijuana and Tecate, Mexican cities with a combined population of more than two million people, the sector features no natural barriers to entry by unauthorized migrants and smugglers.8 As a result of this geographical reality and in response to the large numbers of unauthorized aliens crossing the border in the area, in 1990 the USBP began erecting a physical barrier to deter illegal entries and drug smuggling. The ensuing ―primary‖ fence covered the first 14 miles of the border, starting from the Pacific Ocean, and was constructed of 10-foot-high welded steel.9

Operation Gatekeeper The primary fence, by itself, did not have a discernible impact on the influx of unauthorized aliens coming across the border in San Diego. As a result of this, Operation Gatekeeper was officially announced in the San Diego sector on October 1, 1994. The chief elements of the operation were large increases in the overall manpower of the sector, and the deployment of USBP personnel directly along the border to deter illegal entry. The strategic plan called for three tiers of agent deployment. The first tier of agents was deployed to fixed positions on the border. The agents in this first tier were charged with preventing illegal entry,

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apprehending those who attempted to enter, and generally observing the border. A second tier of agents was deployed north of the border in the corridors that were heavily used by illegal aliens. The second tier of agents had more freedom of movement than the first tier and were charged with containing and apprehending those aliens who made it past the first tier. The third tier of agents were typically assigned to man vehicle checkpoints further inland to apprehend the traffic that eluded the first two tiers. As the Department of Justice Inspector General report notes, ―given Gatekeeper‘s deterrence emphasis, many agents were assigned to first-tier, fixed positions along the border. These agents were instructed to remain in their assigned positions rather than chase alien traffic passing through adjacent areas. Prior to Gatekeeper, such stationary positions were relatively rare.‖10 Operation Gatekeeper resulted in significant increases in the manpower and other resources deployed to San Diego sector. Agents received additional night vision goggles, portable radios, and four-wheel drive vehicles, and light towers and seismic sensors were deployed.11 According to the former INS, between October 1994 and June of 1998, San Diego sector saw the following increases in resources:     

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USBP agent manpower increased by 150%; Seismic sensors deployed increased by 171%; Vehicle fleet increased by 152%. Infrared night-vision goggles increased from 12 to 49; Permanent lighting increased from 1 mile to 6 miles, and 100 portable lightingplatforms were deployed; Helicopter fleet increased from 6 to 10.12

As a result of the increase in resources and the new strategy that were the main components of Operation Gatekeeper, the USBP estimated in 1998 that the entire 66 miles of border patrolled by the San Diego sector‘s agents could be brought under control in five years.13

Sandia National Laboratory Study According to CBP, the primary fence, in combination with various USBP enforcement initiatives along the San Diego border region (i.e., Operation Gatekeeper), proved to be successful but fiscally and environmentally costly.14 For example, as unauthorized aliens and smugglers breached the primary fence and attempted to evade detection, USBP agents were often forced to pursue the suspects through environmentally sensitive areas. It soon became apparent to immigration officials and lawmakers that the USBP needed, among other things, a ―rigid‖ enforcement system that could integrate infrastructure (i.e., a multi-tiered fence and roads), manpower, and new technologies to further control the border region. The concept of a three-tiered fence system was first recommended by a 1993 Sandia Laboratory study commissioned by the former Immigration and Naturalization Service (INS). According to the Sandia study, the use of multiple barriers in urban areas would increase the USBP‘s ability to discourage a significant number of illegal border crossers, to detect intruders early and delay them as long as possible, and to channel a reduced number of illegal

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border crossers to geographic locations where the USBP was better prepared to deal with them.15 The Sandia study further noted that segments of the border could not be controlled at the immediate border due to the ruggedness of the terrain, and recommended the use of highway checkpoints in those areas to contain aliens after they had entered the country illegally.16 The study concluded that aliens attempting to enter the United States from Mexico had shown remarkable resiliency in bypassing or destroying obstacles in their path, including the existing primary fence, and postulated that ―[a] three-fence barrier system with vehicle patrol roads between the fences and lights will provide the necessary discouragement.‖17

CONGRESSIONAL BORDER BARRIER LEGISLATION As previously mentioned, the INS constructed the primary fencing in San Diego using the broad authority granted to the AG in order to guard and control the U.S. border by the Immigration and Nationality Act (INA).18 In 1996, Congress expressly authorized the AG to construct barriers at the border for the first time in the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA).19 This legislation has subsequently been amended on several occasions.

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Section 102 of IIRIRA—Improvement of Barriers at the Border Section 102 of IIRIRA concerned the improvement and construction of barriers at our international borders. As originally enacted, § 102(a) appeared to give the AG20 broad authority to install additional physical barriers and roads ―in the vicinity of the United States border to deter illegal crossings in areas of high illegal entry into the United States.‖ The phrase ―vicinity of the United States border‖ was not defined in the INA or in immigration regulations. The section also did not stipulate what specific characteristics would designate an area as one of ―high illegal entry.‖ As originally enacted, § 102(b) mandated that the AG construct a barrier in the border area near San Diego. Specifically, §102(b) directed the AG to construct a three-tiered barrier along the 14 miles of the international land border of the U.S., starting at the Pacific Ocean and extending eastward. Section 102(b) ensured that the AG will build a barrier, pursuant to his broader authority in §102(a), near the San Diego area, although there is some debate concerning whether IIRIRA required continuous triple fencing and roads for the entire 14mile corridor.21 IIRIRA § 102(b) also provided authority for the acquisition of necessary easements, required certain safety features be incorporated into the design of the fence, and authorized a total appropriation not to exceed $12 million to carry out the section.22 The Secure Fence Act of 2006 (P.L. 109-367) amended IIRIRA § 102(b) by removing the specific provisions authorizing construction of the San Diego fence (though not the provisions concerning fence safety features, easements, or appropriations) and adding provisions authorizing five stretches of two-layered reinforced fencing, totaling roughly 850 miles, along the southwest border.23 IIRIRA § 102(b) was again amended by the Consolidated Appropriations Act, 2008 (P.L. 110-161). The Secretary of Homeland Security is now required to construct reinforced fencing along not less than 700 miles of the southwest border,

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in locations where fencing is deemed most practical and effective.24 The Consolidated Appropriations Act also amended IIRIRA § 102(b) to authorize the appropriation of ―sums as may be necessary to carry out this subsection.‖ Although IIRIRA § 102(b) no longer contains a specific authorization for the San Diego fence, the project appears permissible under the general fence authorization contained in IIRIRA §102(a). As originally enacted, IIRIRA § 102(c) waived the Endangered Species Act (ESA) of 1973 (16 U.S.C. §§1531 et seq.) and the National Environmental Policy Act (NEPA) of 1969 (42 U.S.C. §§4321 et seq.), to the extent the AG determined necessary, in order to ensure expeditious construction of the barriers authorized to be constructed under §102. The waiver authority in this provision appeared to apply both to barriers that may be constructed in the vicinity of the border and to the barrier that was to be constructed near the San Diego area. The INS (and CBP after 2003) never exercised this original waiver authority, instead choosing to comply with the NEPA and the ESA. The INS published a Final Environmental Impact Study pursuant to NEPA and received a non-jeopardy Biological Opinion from the U.S. Fish and Wildlife Service under the ESA.25 This waiver authority was expanded in the 109th Congress by the REAL ID Act, which will be discussed in greater detail subsequently, and DHS has exercised this expanded waiver authority in order to continue construction of the San Diego border fence, as well as physical barriers and roads along the southwest border. Section 102(d) also provided the AG with various land acquisition authorities. In 2002, Congress authorized the AG to use INS funds to purchase land for enforcement fences and to construct the fences.26

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Expansion of Waiver Authority under the REAL ID Act As mentioned above, pursuant to the REAL ID Act of 2005 (P.L. 109-13, Division B),27 the Secretary of DHS was given broad authority to waive legal requirements that might otherwise delay the construction of the security barriers described under § 102 of IIRIRA. Specifically, the Secretary of DHS is authorized to waive all legal requirements necessary to ensure expeditious construction of these security barriers.28 Such waivers are effective upon publication in the Federal Register. Federal district courts are provided with exclusive jurisdiction to review claims alleging that the actions or decisions of the Secretary violate the U.S. Constitution, and district court rulings may be reviewed only by the Supreme Court. The scope of this waiver authority is substantial. Whereas IIRIRA had previously authorized the waiver of NEPA and ESA requirements, the REAL ID Act authorizes the waiver of all legal requirements determined necessary by the Secretary for the expeditious construction of authorized barriers, and only allows judicial review for constitutional claims. This waiver authority appears to apply to all barriers that may be constructed under IIRIRA— that is, both to barriers constructed in the vicinity of the border in areas of high illegal entry and to the barrier that is to be constructed near the San Diego area. Furthermore, these claims can only be appealed to the Supreme Court (i.e., there is no intermediate appellate review), whose review is discretionary. Some have expressed concern with the apparent breadth of the waiver provision and the limited scope of judicial review of waiver decisions. As passed into law, the REAL ID Act waiver provision begins with the arguably ambiguous notwithstanding any other law phrase29

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and allows the waiver of all legal requirements. Although the term legal requirement is not defined, Congress does not have the constitutional authority to permit the Secretary to unilaterally waive a person‘s constitutional rights.30 The provision has been construed by Secretary Chertoff to apply to the waiver of laws in their entirety, along with regulations and requirements deriving from or relating to such laws. Congress commonly waives preexisting laws, but the new waiver provision uses language and a combination of terms not typically seen in law. Most waiver provisions have contained qualifying language that (1) exempts an action from other requirements contained in the Act that authorizes the action, (2) specifically delineates the laws to be waived, or (3) waives a grouping of similar laws. Also common are waiver provisions that contain reporting requirements or restrictions which appear to limit their breadth.31 One waiver authority that appears analogous to that contained in the REAL ID Act is § 203 of the Trans-Alaska Pipeline Authorization Act, as amended, which authorizes the Secretary of the Interior to waive all procedural requirements in law related to the construction of the Trans-Alaska pipeline and limits judicial review to constitutional claims.32 Although some argue that the waiver authority can extend to any law, including those seemingly unrelated to building a fence, the provision is tempered by the requirement that the Secretary must determine that waiving a particular law is necessary ―to ensure expeditious construction‖ of the barriers. In other words, the Secretary may be confined to waiving only laws that, in effect, would impede the construction of the fence—not those that only tangentially relate to or do not necessarily interfere with construction. For example, because child labor laws would not prevent the Secretary from expeditiously constructing the fence, it follows that the Secretary would not have the authority to waive these protections. This interpretation is buttressed by the legislative history of the REAL ID Act, which indicates that several Members called for the waiver provision because of laws that were complicating and ultimately preventing the completion of the fence.33 The decision to waive a law, nonetheless, is solely in the Secretary‘s discretion. Until such time that DHS waives an applicable law, however, it must follow all legal requirements normally imposed on federal agencies. On September 22, 2005, a notice was issued in the Federal Register indicating that Secretary Chertoff, acting pursuant to the authority provided under the REAL ID Act, had exercised waiver authority over various legal requirements in order to ensure the expeditious construction of the San Diego border fence.34 A listing of laws waived by the Secretary can be found in Appendix H. A notice was also published on January 19, 2007, indicating that the Secretary was waiving various legal requirements in order to ensure the expeditious construction of physical barriers and roads in the vicinity of U.S. border area known as the Barry M. Goldwater Range (BMGR), in southwestern Arizona.35 A listing of the federal laws waived by the Secretary pursuant to this notice can be found in Appendix I. On October 5, 2007, Defenders of Wildlife and the Sierra Club brought suit in the U.S. District Court for the District of Columbia seeking a temporary restraining order enjoining DHS from border fence and road-building activities in the San Pedro Riparian National Conservation Area, located in the vicinity of the U.S. border in southeastern Arizona.36 On October 10, 2007, the presiding district court judge issued a temporary restraining order (TRO) halting fence construction activities in the Conservation Area, finding the relevant federal agencies had failed to carry out an environmental assessment as legally required. On October 26, 2007, a notice was published in the Federal Register indicating that the Secretary of Homeland Security had exercised waiver authority over various legal requirements in order

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to ensure the expeditious construction of physical barriers or roads through the San Pedro Riparian National Conservation Area (including any and all lands covered by the TRO),37 thereby enabling the DHS to resume fence construction. A listing of the federal laws waived by the Secretary pursuant to this notice can be found in Appendix J. On April 3, 2008, DHS published two separate notices in the Federal Register indicating that the Secretary of Homeland Security had exercised his waiver authority over a panoply of legal requirements regarding the construction of the border fence. The first notice announced the exercise of the waiver authority to ensure the construction of border fencing in Hidalgo County, Texas. A list of the waived laws can be found in Appendix K. The other notice waived laws to expedite the construction of fencing on certain lands along the border located in California, Arizona, New Mexico, and Texas. Appendix L enumerates the laws waived by the Secretary for this purpose. Legal suits challenging the constitutionality of this waiver authority have thus far proven unsuccessful. In December 2007, the U.S. District Court for the District of Columbia issued an opinion rejecting a constitutional challenge to DHS‘s waiver authority brought by Defenders of Wildlife, and granted DHS‘s motion to dismiss the case.38 The plaintiffs filed a petition for a writ of certiorari to the U.S. Supreme Court, but the Court denied this petition in June 2008.39 Courts have continued to uphold the constitutionality of DHS‘s waiver authority in the face of subsequent legal challenges brought in the U.S. District Courts for the District of Columbia and the Western District of Texas.40

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The Secure Fence Act The Secure Fence Act (P.L. 109-367) was signed into law on October 26, 2006. The Act directed DHS to construct two-layered reinforced fencing and additional physical barriers, roads, lighting, cameras, and sensors along five stretches of the southwest border. CBP has estimated that these stretches of fencing total roughly 850 miles41 of the southern border. The five stretches of the border that DHS was required to fence were the 20 miles around Tecate, CA; from Calexico, CA to Douglas, AZ; from Columbus, NM to El Paso, TX; from Del Rio, TX to Eagle Pass, TX; and from Laredo, TX to Brownsville, TX. The Act designated the roughly 370 mile portion of the fence between Calexico, CA, and Douglas, AZ, a priority area and directed DHS to ensure that ―an interlocking surveillance camera system‖ is installed along this area by May 30, 2007, and that the fence is completed in this area by May 30, 2008. The Act also designated a 30-mile stretch around Laredo, TX, as a priority area and directed DHS to complete this fencing by December 31, 2008. The requirements enacted by the Secure Fence Act were modified in the 110th Congress by the Consolidated Appropriations Act, FY2008 (P.L. 110-161), which was enacted on December 26, 2007. The Act makes a number of modifications to §102 of IIRIRA, significantly increasing the Secretary of Homeland Security‘s discretion as to where to construct fencing along the southwest border. Whereas the Secretary was previously required to install roughly 850 miles of reinforced fencing along five stretches of the southwest border, a more general requirement has now been imposed on the Secretary to construct reinforced fencing:

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along not less than 700 miles of the southwest border where fencing would be most practical and effective and provide for the installation of additional physical barriers, roads, lighting, cameras, and sensors to gain operational control of the southwest border.42

The Act further specifies that the Secretary of Homeland Security is not required to install: fencing, physical barriers, roads, lighting, cameras, and sensors in a particular location along an international border of the United States, if the Secretary determines that the use or placement of such resources is not the most appropriate means to achieve and maintain operational control over the international border at such location.43

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The Act also amends the provisions of IIRIRA §102 concerning fence construction in priority areas, by requiring the Secretary of Homeland Security to identify either 370 miles or ―other mileage‖ along the southwest border where fencing would be most practical and effective, and to complete construction of fencing in identified areas by December 31, 2008. This language replaces the prior language of IIRIRA §102 concerning priority areas, which had been added by the Secure Fence Act. The Consolidated Appropriations Act does not modify the existing waiver provision or limitation on judicial review contained in IIRIRA §102, but does impose new consultation requirements on the Secretary of Homeland Security when carrying out duties under this section, and conditions appropriations under the Act upon compliance with these requirements. Specifically, the Secretary is required to consult with the Secretaries of the Interior and Agriculture, state and local governments, Indian tribes, and property owners ―to minimize the impact on the environment, culture, commerce, and quality of life‖ in areas near where fencing is to be constructed. The Act specifies that this consultation requirement does not create or negate any right to legal action by an affected person or entity.

THE SAN DIEGO SANDIA FENCE In 1996, construction began on the secondary fence that had been recommended by the Sandia study with congressional approval. The new fence was to parallel the fourteen miles of primary fence already constructed on land patrolled by the Imperial Beach Station of the San Diego sector, and included permanent lighting as well as an access road in between the two layers of fencing. Of the 14 miles of fencing authorized to be constructed by IIRIRA, nine miles of the triple fence had been completed by the end of FY2005. Construction of the remaining 4.5 miles was halted as a result of legal actions taken by the California Coastal Commission, which is discussed below.

The California Coastal Commission In order to finish the fence, the USBP proposed to fill a deep canyon known as ―Smuggler‘s Gulch‖ with over two million cubic yards of dirt. The triple-fence would then be extended across the filled gulch. California‘s Coastal Commission (CCC), however, objected

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to and essentially halted the completion of the fence in February 2004, because it determined that CBP had not demonstrated, among other things, that the project was consistent ―to the maximum extent practicable‖ with the policies of the California Coastal Management Program—a state program approved under the federal Coastal Zone Management Act (CZMA) (16 U.S.C. §§1451-1464).44 The CZMA requires federal agency activity within or outside the coastal zone that affects any land or water use or natural resource of the coastal zone to be carried out in a manner that is consistent to the maximum extent practicable with the policies of an approved state management program.45 If a federal court finds a federal activity to be inconsistent with an approved state program and the Secretary of DHS (Secretary) determines that compliance is unlikely to be achieved through mediation, the President may exempt from compliance the activity if the President determines that the activity is in the ―paramount interest of the United States.‖46 According to the CCC, CBP did not believe that it could make further environmental concessions and still comply with IIRIRA. The CCC held that Congress did not specify a particular design in the IIRIRA, and that CBP failed to present a convincing argument that the less environmentally damaging alternative projects it rejected would have prevented compliance with the IIRIRA. Specifically, the CCC was concerned with the potential for significant adverse effects on (1) the Tijuana River National Estuarine Research and Reserve; (2) state and federally listed threatened and endangered species; (3) lands set aside for protection within California‘s Multiple Species Conservation Program; and, (4) other aspects of the environment. In response to the CCC‘s findings, Congress expanded the waiver authority in the REAL ID Act, described in more detail below, in order to allow DHS to waive the CZMA, among other things.

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Current Status of the San Diego Triple Fence As previously discussed, DHS announced in September 2005 that it was applying its waiver authority established by the REAL ID Act to facilitate the completion of the San Diego fence.47 The military has now begun the process of upgrading and rebuilding the San Diego border fence. Congress appropriated $31 million in FY2007 for construction of the remaining 4.5 miles of the San Diego fence.48 DHS has begun construction on the final 4.5 miles of the San Diego fence, filling in the area known as Smuggler‘s Gulch.49

THE SAN DIEGO FENCE AND USBP APPREHENSIONS Apprehension statistics have long been used as a performance measure by the USBP. However, the number of apprehensions may be a misleading statistic for several reasons, including the data‘s focus on events rather than people50 and the fact that there are no reliable estimates for how many aliens successfully evade capture. This makes it difficult to establish a firm correlation between the number of apprehensions in a given sector and the number of people attempting to enter through that sector. While caution should be taken when attempting to draw conclusions about the efficacy of policy initiatives based solely on

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apprehensions statistics, they remain the most reliable way to codify trends in illegal migration along the border. The San Diego fence spans two border patrol stations within the San Diego sector: Imperial Beach station and Chula Vista station. As previously noted, the primary fence was constructed in those two stations beginning in FY1990; the secondary fence was constructed beginning in FY1996. Figure 1 shows the stark decrease in apprehensions at the Imperial Beach station from FY1992 to FY2004.51 The majority of the decrease occurred in the four year period from FY1995 through FY1998 and coincided with Operation Gatekeeper, which as previously noted combined the construction of fencing along the border with an increase in agents and other resources deployed directly along the border. For the period from FY1998 to FY2004, apprehensions at the Imperial Beach station averaged about 14,000 each year.

Source: CRS analysis of CBP data. Figure 1. Imperial Beach Station Apprehensions

Figure 2 shows the apprehensions at the Chula Vista station over the same period of time. The trend in apprehensions at Chula Vista is somewhat similar to Imperial Beach, with overall apprehensions dropping significantly from FY1992 to FY2002. Apprehensions increased slightly from FY2002 to FY2004, but remain far below their early 1990s levels.

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Interestingly, the rate of decline in Chula Vista in the mid-1990s lagged behind the rate of decline in Imperial Beach station during this period. This suggests that as enforcement ramped up in Imperial Beach station, unauthorized migration shifted westward to Chula Vista. From FY1992 to FY1998, for example, apprehensions decreased by 92% in Imperial Beach, but only by 54% in Chula Vista. From FY1998 through FY2001, apprehensions leveled off in Imperial Beach, averaging around 16,000 a year, but continued to decline at Chula Vista, from 72,648 in FY1998 to 3,080 in FY2002. Overall, the trend indicates the following: as enforcement measures, in this case including fencing, were deployed—first focusing on Imperial Beach, and later extending to Chula Vista— the flow of unauthorized migration pushed eastward. The drop in apprehensions occurred first in Imperial Beach, and then later pushed eastward to Chula Vista.

Source: CRS analysis of CBP data. Figure 2. Chula Vista Station Apprehensions

Figure 3 shows the aggregate apprehensions made at the other San Diego sector stations, excluding Imperial Beach and Chula Vista. Those stations are El Cajon, Campo, San Clemente, Temecula, and Brown Field. Figure 3 shows that at the time apprehensions were beginning to decline in Imperial Beach (starting in FY1995) and Chula Vista (starting in FY1996), apprehensions at other San Diego sector stations almost doubled. This suggests that

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as enforcement efforts increased in the two westernmost stations, including the installation of fencing and the deployment of additional agents, the flow of illegal migration pushed eastward to the other stations in the San Diego sector. While apprehensions declined in the non-fenced stations of the San Diego sector from FY1997 to FY2001, the rate of decline was not as steep as the rate of decline at the stations where fencing was deployed. Overall, the decline in apprehensions in the rest of the San Diego sector has lagged behind the decreases in Imperial Beach and Chula Vista: from FY1992 to FY2004, apprehensions in the other San Diego sector stations decreased by 42%, compared to decreases of 95% in Imperial Beach and 94% in Chula Vista. In FY2003 and FY2004, apprehensions increased slightly in the rest of San Diego sector, possibly in response to the increasing USBP focus on the Tucson sector in Arizona.52 It seems, then, that the installation of border fencing, in combination with an increase in agent manpower and technological assets, has had a significant effect on the apprehensions made in the San Diego sector. This in turn suggests that fewer unauthorized aliens are attempting to cross the border in the San Diego sector as a result of the increased enforcement measures, including fencing, manpower, and other resources, that were deployed to that sector.

Source: CRS analysis of CBP data. Figure 3. Apprehensions at San Diego Sector Stations, Excluding Imperial Beach and Chula Vista

Figure 4 shows overall San Diego sector apprehensions, breaking out the Imperial Beach and Chula Vista stations, and compares them to the apprehensions made at the Tucson sector between FY1992 and FY2004. The data used to create this graph can be seen presented in table form in Appendix G. Figure 4 shows that in FY1992, Imperial Beach and Chula Vista

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accounted for 64% of all apprehensions made in the San Diego sector; by FY2004 the two stations accounted for only 14% of all apprehensions made in the sector. However, as apprehensions declined in Imperial Beach and Chula Vista stations and San Diego sector as a whole over the late 1990s and early 2000s, apprehensions in the Tucson sector in Arizona increased significantly over this period. Over the 12-year period between 1992 and 2004, overall apprehensions in the San Diego sector declined by 76%. However, as apprehensions were decreasing in the San Diego sector, they were increasing in other sectors further east. This increase was most notable within the Tucson sector in Arizona, where apprehensions increased six-fold (591%) between FY1992 and FY2004. As Figure 4 shows, overall apprehensions in the San Diego and Tucson sectors combined have averaged roughly 620,000 yearly since FY1992, with the San Diego sector accounting for the lion‘s share during the early 1990s and the Tucson sector accounting for the majority in the early 2000s. This provides further indication that the construction of the fence, combined with the increases in manpower in the San Diego sector, changed the patterns of migration for unauthorized aliens attempting to enter the country illegally from Mexico.

Source: CRS analysis of CBP data. Figure 4. Apprehensions at San Diego Sector Stations and Tucson Sector

As Figures 1-4 show, the increased deployment of agents, infrastructure, technology, and other resources within the San Diego sector has resulted in a significant decline in the number of apprehensions made in that sector. Nationally, apprehensions made by the USBP grew

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steadily through the late 1990s, only to decline in the early 2000s. However, in 1992 the USBP apprehended 1.2 million unauthorized aliens; in 2004, the USBP also apprehended 1.2 million unauthorized aliens.53 While the increased enforcement in the San Diego sector has resulted in a shift in migration patterns for unauthorized aliens, it does not appear to have decreased the overall number of apprehensions made each year by USBP agents. As previously noted, apprehensions statistics can be somewhat misleading, but they nevertheless remain the best way to codify trends in unauthorized migration along the border. However, it is impossible to ascertain solely by looking at apprehensions statistics how many unauthorized aliens are attempting to enter the country illegally, because it is unclear how many individuals evade being captured by the USBP each year.

BORDER BARRIER CONSTRUCTION

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The USBP has been constructing and maintaining barriers along the international land border since 1991. These barriers have historically been limited to selected urban areas as part of the USBP‘s overall strategy of rerouting illegal migration away from urban areas towards geographically isolated areas where their agents have a tactical advantage over border crossers. Two main types of border fencing have been constructed: primary fencing located directly on the border along several urban areas; and Sandia fencing, also known as secondary or triple fencing, in San Diego. Additionally, the USBP has begun installing permanent vehicle barriers in various segments of the border. Vehicle barriers are designed to impede the entry of vehicles while allowing individuals and animals to cross the border freely. As such, they have a lower environmental footprint than border fencing.

Steps Prior to Construction Several considerations come into play whenever the USBP contemplates construction along the border. There are a number of steps that must be taken before the construction process can begin. These steps include, but are not limited to, determining what the environmental impact of the construction will be; acquiring the land needed for the fence; acquiring the materials that will be used for the fence; and securing the assistance of the Corps of Engineers and the National Guard for the construction process. The role the Corps of Engineers plays in assisting the USBP with the entire process of constructing border fencing, including acquiring materials, will be discussed subsequently in the construction process section. This section will cover the issues associated with environmental assessments and land acquisition.

Environmental Impact Assessments Land along the southwest border supports a number of animals and plants and provides habitat to many protected species. The U.S. Fish and Wildlife Service, for example, reported that a total of 18 federally protected species have the potential to be found along certain sections of the California border.54 InArizona, at least 39 federally endangered, threatened, or candidate species can be found living along its border.55 More than 85% of the lands directly

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along the Arizona border are federal lands, much of it set aside to protect wilderness and wildlife. For example, the Organ Pipe Cactus National Monument, the Cabeza Prieta National Wildlife Refuge, and the Buenos Aires National Wildlife Refuge can all be found adjacent to the border. The southwest border region is considered a fragile environment, susceptible to harm from even the slightest changes to the ecosystem.56 Many are concerned with the geographic footprint and subsequent environmental impacts of both illegal immigration and USBP activities. Until the early 1990s, the USBP‘s enforcement activities along the border were nominal and the environmental consequences of illegal crossings went largely unnoticed. As illicit trafficking escalated, however, so did the USBP‘s activities and enforcement footprint, including the construction of fencing and other barriers. Although the San Diego fence reportedly reduced the number of aliens attempting to drive across the open border (and consequently the enforcement footprint to stop such activities), it did little to block the flow of foot traffic.57 Illegal aliens often damage habitat by cutting vegetation for shelter and fire, causing wildfires, increasing erosion through repeated use of trails, and discarding trash.58 Environmentalists claim that the USBP‘s enforcement activities, including the pursuit of illegal aliens, use of off-road vehicles and construction of roads and fences, compound the degradation.59 The REAL ID Act will allow the DHS Secretary to waive any legal requirements needed to expedite the construction of border fencing. Until such time that DHS waives an applicable law, however, it must follow all legal requirements normally imposed on federal agencies, including, for example, NEPA documentary requirements.

Land Acquisition The construction of a fence along the border necessarily requires the government to acquire some type of interest in the land. The San Diego border fence, for example, is to extend approximately 150-feet north of the international boundary.60 Current immigration law authorizes the Secretary of DHS to contract for and buy any interest in land adjacent to or in the vicinity of the international land border when the Secretary deems the land essential to control and guard the border against any violation of immigration law.61 It also authorizes the Secretary to accept any interest in land along the border as a gift and to commence condemnation proceedings if a reasonable purchase price can not be agreed upon. With respect to the San Diego border fence, the law requires the Secretary to promptly acquire such easements as necessary to implement the statute.62 If DHS exercises its eminent domain powers, it must provide just compensation as required by the Constitution. In the case of the San Diego fence, construction of the final 4.5 miles continues to be held up as DHS acquires the necessary land. DHS is authorized to acquire new interests in lands under the INA. However, the federal government may already own some land along the border pursuant to presidential proclamations made long ago. In 1907, President Roosevelt reserved from entry and set apart as a public reservation all public lands within 60-feet of the international boundary between the United States and Mexico within the State of California and the Territories of Arizona and New Mexico.63 Known as the ―Roosevelt Reservation,‖ this land withdrawal was found ―necessary for the public welfare ... as a protection against the smuggling of goods.‖ The proclamation excepted from the reservation all lands, which, as of its date, were (1) embraced in any legal entry; (2) covered by any lawful filing, selection or rights of way duly recorded in the proper

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U.S. Land Office; (3) validly settled pursuant to law; or (4) within any withdrawal or reservation for any use or purpose inconsistent with its purposes. A similar reservation was made by President Taft in 1912, for all public lands laying within 60-feet of the boundary line between the United States and Canada.64 This proclamation states that the customs and immigration laws of the United States could be better enforced and the public welfare thereby advanced by the retention in the federal government of complete control of the use and occupation of lands abutting the international boundary lines. The proclamation also provides exceptions similar to those described in the Roosevelt Reservation.

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Border Fence Construction Process and Funding CBP has, in the past, constructed the majority of border fencing under a Memorandum of Agreement (MOA) with the ECSO (Engineering and Construction Support Office) of the U.S. Army Corps of Engineers (Corps). ECSO manages several components of the construction process for CBP, including planning and acquisition of real estate; drafting the environmental protection plan; designing the project and formulating the engineering costs; overseeing the construction process; and enforcing the appropriate warranties. On most of the tactical infrastructure projects, National Guard units and military units from the Department of Defense (DOD) Joint Task Force North provide the labor. DOD uses these projects as part of their training regimen, leveraging their ability to deploy tactical infrastructure and thereby providing zero labor costs to CBP.65 The funding for land acquisition and fence materials comes out of the CBP construction account within the DHS appropriation. Specific funding for fence construction is rarely identified in the conference reports, though it typically has been identified within the DHS (and previously the former INS) Congressional Budget Justifications.66 Table 1 shows the overall amount appropriated for the USBP construction account, and the specific amounts identified for tactical infrastructure within that account, since FY1996. Appropriations for fencing and other border barriers has increased markedly over the past five years, from $6 million in FY2002 to $647 million in FY2007. The FY2008 appropriation, according to CBP, included $196 million for fence construction. In FY2009, the Administration requested $775 million for the deployment of SBInetrelated69 technologies and infrastructures, a decrease of $450 million over the FY2008enacted level of $1,225 million.70 Within the FY2009 request, the Administration proposed allocating $275 million for developing and deploying additional technology and infrastructure solutions to the southwest border. An additional $410 million was requested for operations and maintenance of the cameras, sensors, and fencing that will have been constructed by the end of calendar year 2008 with prior-year funding.71 The Administration‘s request did not appear to include funding for new fencing or vehicle barriers at the border. Instead, the Administration noted that this funding would cover the costs associated with operating and maintaining the technologies that have been deployed to the border as part of the SBInet program, as well as the 370 miles of fencing and 300 miles of vehicle barriers, which were scheduled to be completed by the end of calendar year 2008 with funding appropriated in FY2007 and FY2008—as of the end of calendar year 2008, DHS had constructed 306 miles of fencing and 3001 miles of vehicle barriers. Most of the fencing that was constructed during

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2008 was contracted out; the Corps and the National Guard were involved mainly in the project to finish the San Diego fence.72 Table 1. Border Patrol Tactical InfrastructureAppropriations (millions of dollars)

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Fiscal Year 2009 2008 2007 2006 2005 2004 2003 2002 2001 2000 1999 1998 1997 1996

Construction Account (total) 775a 1,225b 1,500c 298 92 89 235 128 133 100 90 76 10 25

Tactical Infrastructure Construction N/A 196b 647c 93 15 14 23 6 3 9 4 8 4 4

Sources: For FY2006, the amounts appropriated for construction and tactical infrastructure were identified from the FY2007 DHS Congressional Budget Justifications. For FY2004-FY2005, the amounts appropriated for construction and tactical infrastructure were identified from the FY2006 DHS Congressional Budget Justifications. FY2003 construction and tactical infrastructure funding was identified from the FY2005 DHS Congressional Budget Justifications. FY1996-FY2002 tactical infrastructure funding was identified in the FY2003 INS Congressional Budget Justifications; funding for FY1998-FY2000 includes San Diego fencing as well as fencing, light, and road projects in El Centro, Tucson, El Paso, and Marfa. FY2001 and FY2002 construction funding was identified from the FY2002 INS Congressional Budget Justifications. FY2000 construction funding was identified from the FY2001 INS Congressional Budget Justifications and H.Rept. 107-278. FY1999 construction funding was identified from P.L. 105-277. FY1998 construction funding was identified from P.L. 105-119. FY1997 funding was identified from P.L. 104-208. FY1996 construction funding identified from P.L. 104-134. Notes: In FY2003 immigration inspections from the former INS, Customs inspections from the former customs service, and the USBP were merged to form the Bureau of Customs and Border Protection within DHS. As a result of this the data for years prior to FY2003 may not be comparable with the data for FY2004 and after. The USBP construction account has been used to fund a number of projects at the border, including fencing, vehicle barriers, roads, and USBP stations and checkpoints. In FY2007, the appropriations committee created a new Border Security Fencing, Infrastructure, and Technology (BSFIT) account within the CBP. This account funds the construction of fencing, other infrastructure such as roads and vehicle barriers, and border technologies such as cameras and sensors. Border fencing and infrastructure construction was transferred from the USBP Construction account to the new BSFIT account. a. In FY2009, Congress appropriated $775 million for BSFIT in P.L. 110-329. No breakout of tactical infrastructure construction was provided in the Act. b. In FY2008, Congress appropriated $1,225 million for BSFIT in the Consolidated Appropriations Act (P.L. 110161). According to CBP, $196 million will be used for border fencing.67 c. The BSFIT appropriation in the FY2007 DHS Appropriation Act was $1.2 billion (see H.Rept. 109-699). Combined with the $300 million already appropriated in the emergency supplemental, the overall BSFIT appropriation for FY2007 was $1.5 billion. The appropriators did not offer guidance on how this funding was to be allocated between these different purposes. According to CBP, $647 million will be obligated for fencing in FY2007.68

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Committees on Appropriations. This spending plan should include 12 specific components, among them a detailed accounting of the program‘s implementation to date; a description of how the expenditure plan allocates funding to the highest priority border security needs, addresses northern border security needs, and works towards obtaining operational control of the entire border; certifications by the Chief Procurement Officer and the Chief Information Officer at DHS; an analysis, for each 15 miles of fencing or tactical infrastructure, of how the selected approach compares to other alternative means of achieving operational control; and a review by the Government Accountability Office.73

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Table 2. DOD Funding for the Southwest Border Fence (Millions of Dollars) Fiscal Year DOD Funding 2009 1.6 2008 1.2 2007 N/A 2006 3.5 2005 N/A 2004 4.0 2003 4.7 2002 5.0 2001 5.0 2000 4.0 1999 3.0 1998 4.0 1997 5.0 Source: FY2009, House Appropriations Committee Print accompanying P.L. 110-329, Division C; FY2008, H.Rept. 110-434; FY2007, H.Rept. 109-676; FY2006, H.Rept. 109-359; FY2005, H.Rept. 108-622; FY2004, H.Rept. 108-283; FY2004, H.Rept. 107-732; FY2002, H.Rept. 107-333; FY2002, H.Rept. 106945; FY2000, H.Rept. 106-371, FY1999, H.Rept. 105-746; FY1998, H.Rept. 105-265; FY1997, H.Rept. 104-724. Notes: N/A means not available. No funding was identified for border fencing in the FY2007 DOD Conference report, H.Rept. 109-676. The House Committee had recommended $8 million for this activity in H.Rept. 109-504, while the Senate Committee had not recommended any funding for it in S.Rept. 109-292. FY2005 funding for the ―Southwest Border Fence‖ sub-account was also not identified in the DOD Conference Report, H.Rept. 108-622. The House Committee had recommended $7 million for this sub-account in H.Rept. 108-553; while the Senate Committee had not recommended any funding for it in S.Rept. 108-284.

Under the MOA, once CBP purchases the materials and acquires the land, the Corps of Engineers undertakes the engineering studies. If the Corps is involved in the construction process, it provides the manpower and machinery that are used to install the fencing. The actual manpower is typically provided by the State National Guard (the California National Guard, for example, constructed much of the San Diego fence), although occasionally the military, and sometimes the USBP, are involved in the construction.74 As previously noted, however, DHS has been utilizing private contractors to undertake the construction of most of its new fencing in the last year. Even when private contractors are used to build the fencing, however, the Corps remains involved in the planning and engineering phases of the process. The Corps of Engineers funding comes from the Department of Defense Drug Interdiction and Counter-Drug Activities Account. Table 2 shows the funding for the

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―Southwest Border Fence‖ sub-account within this DOD Account, from FY1997 to FY2009. As previously noted, however, much of the new fence construction currently taking place is being done by private contractors.

Types of Fences and Barriers

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The USBP currently uses three main types of barriers along the border: primary fencing immediately on the international border, Sandia fencing behind the primary fencing, and vehicle barriers meant to stop vehicles, but not people on foot, from traversing the border. While other forms of primary fencing, such as bollard fencing75 and picket fencing,76 have been constructed in limited areas,77 historically the agency has largely focused on using the landing mat fencing as a primary fence and the Sandia fence as a secondary fence.

Landing Mat Fencing Landing mat fencing is composed of army surplus carbon steel landing mats which were used to create landing strips during the Vietnam War. The landing mats form panels 12 feet long, 20 inches wide, and 1/4 inch thick, which are welded to steel pipes buried 8 feet deep every 6 feet along the fence. Each mile of fencing requires the use of 3,080 panels.78 There are about 5 miles of surplus landing mat fencing remaining as of 2006.79 According to the USBP, sites that feature landing mat fencing include the following USBP stations: Campo, CA; Yuma, AZ; Nogales, AZ; Naco, AZ; Douglas, AZ; and El Paso, TX.80 In a 1999 study which was commissioned by the INS and performed under a Memorandum of Understanding, the Corps of Engineers predicted that construction costs for the landing mat fencing would range from $388,005 to $431,117 per mile.81 This estimate includes the cost of materials, despite the fact that the landing mat fencing constructed to date has been comprised of army-surplus panels acquired by CBP at no cost. As previously noted, however, only about 5 miles of surplus landing mat fencing material remains available. Maintenance costs per year could vary widely depending on the number of breaches the fence undergoes. Low levels of damage to the fence would result in low annual repair costs, while a large number of breaches could result in stretches of fencing needing to be replaced. Per mile, the Corps of Engineers estimated that yearly maintenance costs would probably range from $1,742 to $17,753.82 The Corps of Engineers noted that the net present value83 of the fence after 25 years of operation would range from $5.4 million and $8.3 million per mile depending on the amount of damage sustained by the fencing each year. Sandia Secondary Fence The secondary fence proposed by the Sandia study has only been constructed over roughly 9.5 miles of the 14 miles in the original plan due to environmental concerns voiced by the California Coastal Commission. As previously discussed, P.L. 109-13 included language that will allow waiver of all legal requirements determined necessary by the Secretary of DHS for the expeditious construction of authorized barriers and only allows judicial review for constitutional claims. On September 14, 2005, DHS announced it is applying its new waiver authority to complete the San Diego fence.84 DHS is currently estimating that it will cost an additional $66 million to finish the San Diego fence, bringing

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overall costs for this 14 mile-long project to $127 million. Additionally, DHS notes that it will use a mix of DOD resources and private contractors to finish the fence, and that the cost of using contractors is included in the request.85 The Sandia fence, as it has been constructed in the San Diego sector, is a secondary fence constructed behind the primary fence. Enough space is left between the two fences to accommodate an access road. The secondary fence is an angled two-piece fence. The fence is vertical up to ten feet high, and then extends out at an angle towards the climber. This prevents climbing by using gravity and the weight of the climber against them. The Corps of Engineers estimated that Sandia fencing costs per mile would range from $785,679 to $872,977 for construction and $953 to $7,628 per mile yearly for maintenance. Additionally, the Corps of Engineers study notes that the Sandia fence would possibly need to be replaced in the fifth year of operation and in every fourth year thereafter if man-made damage to the fence was ―severe and ongoing.‖ For this reason, in the study the Corps of Engineers noted that the net present value of the fence after 25 years of operation, per mile, would range from $11.1 million to $61.6 million.86

Other Border Barriers: Vehicle Barriers

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The USBP utilizes various different types of barriers to impede vehicles from crossing into the United States from Mexico. Some of these barriers are temporary and can be moved to different locations when needed, others are permanent barriers. The main purpose of vehicle barriers is to prevent smugglers from easily driving their vehicles across the border.

Permanent Vehicle Barriers Permanent vehicle barriers, as their name suggests, are not designed to be moved but rather are permanent installations. Permanent vehicle barriers are typically steel posts, or bollards, that are excavated 5 feet deep and inserted into a poured concrete base. The posts alternate in above-ground height in order to dissuade individuals from forming a ramp over the barrier. They are spaced so as to allow foot and animal traffic but not vehicular traffic. The USBP recently began building permanent vehicle barriers in the Yuma sector, with a substantial stretch slated to be built along the Organ Pipe Cactus National Monument. When linked with the 30 miles of vehicle barriers built by the National Park Service, a USBP spokesman reportedly noted that the total 123 mile length of the project ―will form the largest continuous physical barrier along the border in the nation.‖87 In the FY2007 DHS Congressional Budget Justifications, DHS notes that the Yuma vehicle barrier project would take until at least 2010 (and possibly longer) to complete if CBP continued to use the Corps of Engineers and other military personnel to construct the barriers. Instead, CBP proposes hiring commercial contractors to build 39 miles of vehicle barriers in the Yuma sector, or almost half of the project‘s 93 mile total.88 CBP is projecting that the project will be completed by FY2011, and that the overall project costs will be $116 million.89 This means that, overall, the project will cost roughly $1.25 million per mile. The National Park Service has spent $11.1 million to construct 18 miles of permanent vehicle barriers in Organ Pipe Cactus National Monument, and has obligated, but not yet spent, an

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additional $6.6 million in FY2005 funding to complete the remaining 13 miles of the project.90

Temporary Vehicle Barriers Temporary vehicle barriers are typically built from welded metal, such as railroad track, but can also be constructed from telephone poles or pipe. These barriers are built so that they cannot be rolled or moved manually; they can only be moved with a forklift or a front-end loader. They are usually built at USBP stations and transported to areas of high vehicle entry, where they are placed and chained together.91 The main advantage of the temporary vehicle barriers is their ability to be redeployed to different areas to address changes in smuggling patterns. The main disadvantage of these barriers is that they are easier to compromise than permanent vehicle barriers.

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Current Status In FY2007, DHS unveiled a new program, called SBInet,92 that will deploy a mix of personnel, technology, infrastructure, and response assets in order to ―provide maximum tactical advantage in each unique border environment.‖ While SBInet has been billed as a nationwide initiative, its initial rollout has been confined to the southwest border. As part of SBInet, DHS awarded a contract to Boeing to serve as the project‘s lead technology integrator. The SBInet program has included the construction of barriers as part of its approach to securing the border. Boeing, in conjunction with the Sandia National Laboratory, created a Fence Lab program to test the efficacy of 8 different fence designs.93 In FY2007, CBP constructed a total of 76 miles of border fencing bringing the overall fencing at the border to 154 miles. In FY2008 through the end of the calendar year, CBP is planning to construct an additional 216 miles of fencing; this would bring the overall fencing at the border to 370 miles by the end of calendar year 2008.94 Through early April, 2008, CBP had constructed an additional 18 miles of fencing, bringing the total mileage of fencing constructed at the border to 172.95 The fencing that has been constructed thus far as part of SBInet has been primary fencing, and a few different designs have been used, including bollard fencing. While the National Guard was involved in some of the construction in FY2007, much of it was undertaken by contractors. In 2008, the majority of the fence construction will be done by contractors.96 In FY2007, CBP constructed 110 miles of vehicle barriers. Through early April in 2008, CBP had constructed an additional 32 miles of vehicle barriers, bringing the total vehicle barrier mileage to 142. CBP plans to build 158 additional miles of vehicle barriers by the end of calendar year 2008; this would bring the overall total mileage of vehicle barriers at the border to 300.97 In testimony before the Appropriations Committee, the Government Accountability Office (GAO) noted that CBP‘s goal for fencing and vehicle barrier deployment in 2008 ―will be challenging because of factors that include difficulties acquiring rights to border land and an inability to estimate costs for installation.‖98 Despite these challenges, as of the end of 2008 CBP had constructed 296 miles of pedestrian fencing and 282 miles of vehicle barriers.

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As of February 13, 2009, CBP had constructed 306 miles of fencing and 301 miles of vehicle barriers. This means that CBP has met its goal for vehicle barriers on the southern border and is roughly 64 miles short of its 370 mile goal for fencing. Roughly 90% of the fencing deployed to the border has been primary fencing; only about 32 miles of double layer fencing has been constructed in the San Diego and El Paso sectors.99

ISSUES FOR CONGRESS Congress may consider a number of issues concerning the construction of barriers along the border, including, but not limited to, their effectiveness, overall costs compared with benefits, possible diplomatic ramifications, unintended consequences, and the locations in which they are to be constructed. Although these issues apply to all potential barriers at the border, due to the focus on border fencing in the current congressional debate, this section will focus its analysis on the potential policy and legal issues surrounding the construction of fencing at the border.

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Effectiveness Proponents of border fences point to the substantial reduction in apprehensions along the San Diego sector as tangible proof that fences succeed in reducing cross-border smuggling and migration where they are constructed.100 Opponents attribute part of the decrease in apprehensions to the increase in manpower and resources in the sector and, pointing to the increase in apprehensions in less-populated sectors, contend that the fence only succeeds in rerouting unauthorized migration and not in stopping it.101 The USBP, for its part, states that border fencing is a force multiplier because it allows its agents to focus enforcement actions in other areas. The USBP has also stated that the fencing constructed in urban areas has helped reroute unauthorized migration to less populated areas where its agents have a tactical advantage over border crossers. As previously noted, the number of USBP apprehensions in 2004 were almost identical to the number of apprehensions in 1992; the main difference is that San Diego accounted for the majority of apprehensions in 1992, whereas in 2004 Tucson and Yuma sectors accounted for the majority of apprehensions. A possible issue for Congress concerns the overall effectiveness of border fencing, especially if it is not constructed across the entire border in question. In the limited urban areas where border fencing has been constructed, it has typically reduced apprehensions. However, there is also strong indication that the fencing, combined with added enforcement, has re-routed illegal immigrants to other less fortified areas of the border. Additionally, in the limited areas where fencing has been erected, there have been numerous breaches of the border fencing and a number of tunnels discovered crossing underneath the fencing. It stands to reason that even if border fencing is constructed over a significant portion of the land border, the incidences of fence breaches and underground tunnels would increase. Possible policy options to address these issues could include mandating that border fencing be highly tamper-resistant or directing CBP to invest in tunnel-detection technologies.

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Costs Because border fencing is a relatively new and limited phenomenon along the U.S.Mexico border, there is a dearth of information concerning its overall costs and benefits. The Corps of Engineers study predicted that the costs of constructing a double layer fence consisting of primary fencing and Sandia fencing would range from $1.2 million to $1.3 million a mile, excluding the costs of land acquisition. The Corps of Engineers also predicted that the 25-year life cycle cost of the fence would range from $16.4 million to $70 million per mile depending on the amount of damage sustained by the fencing.102 If significant portions of the border were to be fenced, reducing the areas along which individuals could cross the border, it may stand to reason that the fencing will be subjected to more breaches and other attempts to compromise than the fencing that has already been constructed. This may mean that the costs of maintaining border fencing that is widely deployed in the future will be higher than they have been thus far for the limited deployment. The Corps estimates do not include the costs of acquiring the land or most labor costs, since construction would be done by DOD; these could well turn out to be significant expenses if private contractors are used to construct the fencing as per DHS‘ FY2007 Congressional Budget Justifications. The Congressional Budget Office (CBO) has estimated that border fencing would cost $3 million a mile to construct and that maintenance would total roughly 15% of the overall project costs per year.103 However, the CBO does not elaborate on what is included in those estimates. DHS predicts that the San Diego fence will have a total cost of $127 million for its 14-mile length when it is completed—roughly $9 million a mile. Construction of the first 9.5 miles of fencing cost $31 million, or roughly $3 million a mile, while construction of the last 4.5 miles of fencing is projected to cost $96 million, or roughly $21 million a mile.104 However these costs may be somewhat misleading due to the following factors: construction of the fence was delayed for an extended period of time; the remaining construction involves filling a relatively large gulch which may be more complex than the average stretch of border; and DHS is proposing to use private contractors to expedite the construction process which may increase the labor costs and thus may increase the overall project costs. According to the Government Accountability Office (GAO), the border fencing constructed by the end of FY2007 (using mostly the Corps of Engineers and the National Guard to construct the fencing) cost about $2.8 million a mile. The fencing constructed in FY2008, using mostly private constructors, cost about $5.1 million a mile.105 Some have argued that building fences on the border is too expensive and would consume funding that would be better spent on hiring additional agents or deploying additional technologies to the border.106 Others maintain that the costs of fencing are negligible compared to the costs of illegal immigration, and that fencing has been proven effective at decreasing illegal immigration in those areas where it has been deployed.107 The USBP has testified that ―for border control, for border security, we need that appropriate mix. It‘s not about fences. It‘s not about Border Patrol agents. It‘s not about technology. It‘s about all of those things.‖108 At issue for Congress is how best to allocate scarce border security resources while safeguarding homeland security. Does border fencing represent the best investment of border security funding, and what is the appropriate mix of border security resources? How much will maintaining border fencing cost in the future, and which agency will be responsible for this maintenance? Will using private contractors to expedite the construction of border fencing increase or decrease the costs?

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Fence Design Congress mandated the design of the border fence in San Diego in IIRIRA. Many different fence designs could be deployed to the border, and each have their relative strengths and weaknesses. Concrete panels, for example, are among the more cost-effective solutions but USBP agents cannot see through this type of fencing; the USBP testified about their preference for fencing that can be seen through, so as to identify the activity occurring on the Mexican side of the border and thus preserve their tactical advantage over potential border crossers, and to better avoid potential rockings109 or other violent incidents. Sandia fencing has been effective in San Diego and can be seen through, but is among the more expensive fencing options. Bollard fencing has been effective in its limited deployment and can also be seen through, but is also expensive to install and to maintain. Chain link fencing is relatively economical, but more easily compromised.110 If fencing is to be constructed along the border, an issue concerns what kinds of fencing should be constructed in order to maximize its deterrent effect and its utility to the USBP while minimizing the costs associated with its construction and maintenance.

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Fence Location The USBP has testified that border fencing is most effective for its operational purposes when deployed along urban areas.111 In these areas, individuals crossing the border have a short distance to cover before disappearing into neighborhoods; once they have entered neighborhoods it is much more difficult for USBP agents to identify and apprehend unauthorized aliens. Also, from populated areas it is relatively easy for unauthorized aliens to find transportation into the interior. For these reasons, all of the border fencing constructed by the USBP to date has been built in urban areas abutting the border, such as San Diego, Nogales, and El Paso. In rural areas, the USBP testified that it has a tactical advantage over border crossers because they must travel longer distances before reaching populated areas. According to CBP, fencing is manpower intensive because agents must continually check the fence for breaches and for illegal activity. This does not represent a problem in urban areas, because the USBP stations are typically located near the border in those areas. In some of the more rural areas of the border, where the nearest towns and USBP stations may be many miles away from the border, this would mean that agents would need to spend much of their working day commuting from the nearest USBP station to the fence location.112 Additionally, because the border fencing constructed to date has been built along urban areas it has been relatively easy to house the individuals involved in its construction. If border fencing is extended into the more remote areas of the border, the costs of its construction may increase due to the need to bring the individuals and goods needed to build the fence to these areas for extended periods of time. Lastly, some areas of the border are prone to severe weather effects, such as flash flooding, that could compromise any permanent structures constructed there. A very practical issue concerns what areas of the border should be fenced. Should fencing be restricted to urban or semi-urban areas in order to give the USBP a tactical advantage over border crossers, or should fencing be constructed along any geographical area of the border that features large numbers of unauthorized immigration? In rural areas, should

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fencing be limited to areas of high illegal entry in order to impede individuals from crossing the border, or should fencing be constructed as a deterrent in any area, even those featuring low levels of illegal entry? Should fencing be deployed in sectors where the distance between the nearest USBP station and the fence requires agents to spend most of their day commuting? Should fencing be deployed to the northern border as well as the southwest border? Will building fencing along more remote or environmentally harsher areas of the border increase the construction costs?

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Land Acquisition There are a number of issues associated with the acquisition of the land that would be required for border fencing. Much of the land along the California and Arizona border is owned by the federal government; however most of the land along the Texas border is owned by private individuals. What will the costs of acquiring the land to construct border fencing be, and have these costs been factored into estimates of border fencing costs? Will eminent domain be used to confiscate land from individuals who do not wish to have fencing built on their lands? The reservations made by Presidents Roosevelt and Taft may have kept substantial parcels of land within the federal domain, depending mostly on the amount of public lands at the time and valid existing claims. CRS was not able to determine how many valid claims and land patents exist, if any, or the number of private developments that may be encroaching on the reservations. Nonetheless, it appears that only those who qualify under an exception or were provided land by statute have valid fee title claims within the reserved strip. If lands were mistakenly granted, sold, or transferred to private parties, these conveyances could be void because, as a general rule, rights can not be acquired in lands actually embraced in a legally valid withdrawal.113 Compensation under the Fifth Amendment for private landowners may not be owed if private claims are not legitimate. Because the proclamations do not cite any supporting authority, some question the President‘s implied or inherent constitutional powers to issue them.114 Others may argue that they conflict with the exclusive mandate given Congress by the Property Clause of the Constitution to regulate and dispose of federal property.115 An issue for Congress may include whether these proclamations are, in fact, valid, and if so what actions are appropriate to take in the instances where individuals own land within the reservation‘s boundaries. Assuming the proclamations are valid, the reservations may provide the first 60 feet of necessary space for fence construction in many areas. However, the two layer fencing constructed to date includes 150 feet of land between its layers. An issue for Congress may involve whether to confine border fencing to the 60-feet easement reserved by the proclamations, or whether to acquire the additional 90 feet of land that would be needed to construct Sandia-style fencing. A corollary issue may involve the authority of DHS to construct border fencing along tribal lands. The Arizona desert along the Tohono O‘odham reservation has become one of the most heavily trafficked border areas in the country, and the USBP has been restricted in its operations in the reservation due to tribal concerns.116 The Tohono O‘odham have reportedly vowed to fight the construction of fencing on tribe-owned land, citing environmental and cultural concerns.117 Under current law, the Secretary of the Interior may

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grant rights-of-way over and across tribal land, provided the Secretary receives prior written consent of the tribe.118 If the tribe does not consent, DHS may look to its new waiver authority to construct a fence across tribal lands. It is unclear, however, whether the expanded waiver that was given to the Secretary of DHS would allow (or was intended to allow) the Department to override the statutory authority given to another federal agency. Ultimately, federal government holds all Indian lands in trust, and Congress may take such lands for public purposes, as long as it provides just compensation as required by the Fifth Amendment.119

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Diplomatic Ramifications The governments of Mexico and Canada have both voiced concern about the United States constructing barriers along the international border. Mexican President Vicente Fox has come out strongly against the construction of border barriers on numerous occasions, stating his belief that these projects isolate the two nations, create frustration and misunderstandings, and do not solve the underlying problems that lead individuals to enter the United States illegally. Mexican Press Secretary Rubén Aguilar Valenzuela stated his government‘s belief that ―history has also taught us that a wall is never the solution to problems and that all walls eventually get torn down.‖120 The Mexican government has reportedly forwarded numerous diplomatic notes to the White House registering its complaints against the possible expansion of border fencing. The Canadian government has also reportedly voiced concern over legislative proposals that would require a study of fencing options along the northern border, citing the difficulties of fencing the northern border and the fact that the U.S. government has never discussed such a plan with Canadian authorities.121 Deputy Assistant Secretary for Immigration and Customs Enforcement John P. Clark reportedly stated during Congressional testimony that the proposed expansion of border fencing ―harkens back to the Chinese wall and the Berlin Wall, not the message we want to send to the Mexican government, the Canadian government, and the rest of the world.‖122 There are a number of possible issues for Congress to consider involving the potential diplomatic ramifications of constructing barriers along the border: Do the gains in border security outweigh the risk of alienating Mexico and Canada? Should the Mexican or Canadian government‘s opinions or wishes be taken into account when border fencing is concerned? Given the need to coordinate intelligence and law enforcement activities at the border, should maintaining cordial working relationships with Mexico and Canada take precedence over sealing the border with physical barriers?

Environmental Considerations A great deal of debate has been around the environmental impacts of border fencing. The addition of fences along the southwest border, according to some, could harm sensitive environments, adversely affect critical habitat for protected species, and block migratory patterns for animals. Indeed, these concerns were among the many voiced by the CCC in its objection to the completion of the San Diego border fence. After immigration officials, the CCC, and the environmental community could not agree on a fence design, Congress passed

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waiver language in the REAL ID Act that allows the Secretary of DHS to waive all ―legal requirements‖ necessary to ensure expeditious construction of the barriers and roads in the vicinity of the U.S. border. The Secretary used this provision to waive a number of primarily environmental laws (see Appendix H) in order to complete the San Diego border fence. DHS maintains, however, that it will follow ―best management practices‖ throughout construction and will be ―mindful of the environmental impacts‖ that might occur.123 Nonetheless, the Secretary‘s broad waiver authority has many worried about potential fence projects along other areas of the southwest border. Some argue that a fence along the Arizona border could be especially destructive to endangered jaguar and Sonoran desert pronghorn populations that usually roam this area because it would fragment native habitat and ultimately reduce gene pools.124 Officials from the U.S. Fish and Wildlife Service, however, have said that it is too early to speculate about the potential impact of a border fence on wildlife migration.125 Others note that unauthorized migration negatively impacts the environment, and believe that the construction of fencing could actually have a beneficial impact for protected lands if it reduces the number of unauthorized migrants traversing through environmentally sensitive lands. As Congress debates immigration reform and the addition of new border fences, Members will undoubtedly be called upon to balance national security interests with environmental protections. Because there does not appear to be a clear consensus on the environmental impacts of border fencing, there is some interest in a study of the issue.126 The effects of the San Diego border fence, for example, may help scientists better understand and predict potential environmental consequences elsewhere. Should fencing be expanded along the southwest border, Congress may be interested in environmentally sensitive alternatives to normal fencing and whether they can effectively limit illegitimate cross-border traffic. Some argue that vehicle barriers may be less intrusive because they allow unimpeded wildlife movement but can limit damaging vehicular traffic.127 Congress may also call on the Secretary to cooperate or coordinate certain activities with the environmental community, since the Secretary could waive many environmental requirements.128

Legal Considerations The building of barriers along the international border has raised a number of legal issues. Most stem from requirements posed by environmental laws. Before the passage of the REAL ID Act waiver provision, for example, the Sierra Club and other environmental groups challenged, under the National Environmental Policy Act, the federal government‘s plan to complete the San Diego border fence.129 The lawsuit alleged, among other things, that the government‘s final environmental impact statement did not address the entire 14-mile border infrastructure system and inadequately addressed the parts that were evaluated. After Secretary Chertoff exercised the waiver authority, the court dismissed the environmentalists‘ lawsuit in December 2005. With respect to the Secretary‘s use of the waiver authority, the provision allows legal redress only for constitutional violations and limits review to the district courts of the United States (though the Supreme Court retains discretionary appellate review over district court decisions). In essence, an individual could not sue DHS for bypassing the environmental

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impact statement requirements of the National Environmental Policy Act (a law it has waived) because that would be a statutory violation, but an individual could sue for the taking of property without ―just compensation‖ as provided by the Fifth Amendment. Should a district court make a ruling, that decision can only be appealed if the petitioner files a petition for a writ of certiorari to the Supreme Court and the Court, in its discretion, chooses to grant certiorari. In other words, there is no intermediate appellate court review guaranteed as of right to a petitioner. Appeal directly from a district court to the Supreme Court rarely appears in law.130 Still, when Congress determines a particular class of cases to be of great public import, it is not unprecedented for it to require prompt review in the highest court of the land. As previously discussed,131 a few legal challenges have been brought in federal district courts challenging the constitutionality of the waiver authority provided to the Secretary of Homeland Security by the REAL ID Act, but these challenges have thus far been rejected.

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Unintended Consequences Considerable evidence shows that the USBP‘s historical strategy of ―Prevention through Deterrence,‖ whereby agents and resources including border fencing and other barriers have been concentrated along urban areas and areas traditionally featuring high levels of illegal entry, has succeeded in changing the flow of illegal migration. While San Diego, CA, and El Paso, TX, were historically the two sectors that featured the most apprehensions and the highest levels of illegal immigration, since the mid-1990s and the advent of Operations Gatekeeper and Hold the Line in those sectors, the more remote geographical areas of the Arizona border have become the hot-spots for illegal migration into the United States. One unintended consequence of this enforcement posture and the shift in migration patterns has been an increase in the number of migrant deaths each year; on average 200 migrants died each year in the early 1990s, compared with 472 migrant deaths in 2005. Another unintended consequence of this enforcement posture may have been a relative increase, compared with the national average, in crime along the border in these more remote regions. While crime rates in San Diego and El Paso have declined over the past 15 years, the reduction in crime rates along the more rural areas of the border have lagged behind the national trends. Another unintended consequence of the border fencing has been the proliferation of tunnels dug underneath the border. In San Diego, where the double-layer Sandia fencing has been constructed, smugglers have dug numerous tunnels underneath the border fence. One such tunnel was almost a kilometer long and was built from reinforced concrete— evidence of a rather sophisticated smuggling operation. A possible issue for Congress to consider as it debates expanding the existing border fencing is what the unintended consequences of this expansion could be. Given the re-routing of migration flows that have already occurred, are DHS and the relevant border communities prepared to handle the increased flow of illegal migration to non-reinforced areas? Is DHS prepared to deal with an increase in the phenomenon of cross-border tunnels and other attempts to defeat the purpose of the fencing? What will the impact on crime rates be along the unreinforced areas of the border? Will USBP agents be required to spend some of their patrolling time guarding the fence?

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APPENDIX A. LEGISLATION IN THE 110TH CONGRESS As previously noted, the Consolidated Appropriations Act of 2008 (P.L. 110-161) made significant changes to the Secure Fence Act. The Act gives DHS discretion as to where fencing should be erected along the border, requires that 700 miles of reinforced fencing be constructed, and designates 370 miles as a priority area that must be constructed by December 31, 2008. In addition, the Act provided a total of $1,225 million for SBInet. This represented an increase of $225 million over the Administration‘s request, and the amounts recommended by the House- and Senate-passed versions of the bill. Of the $1,225 million provided by P.L. 110-161, $1,053 million was designated as emergency funding, and $172 million comprises regular appropriations.132 The $1,225 million was apportioned as follows: $1,088 million for development and deployment ($1,053 million in emergency funding, and $35 million in regular appropriations); $73 million for operation and maintenance; and $64 million for program management. Funding for the construction of the border fence was included in the development and deployment activity in the BSFIT account. However, it is important to note that other items, such as the deployment of cameras and sensors to the border, are also funded under this activity. Currently available authoritative documentation does not provide funding details below the activity level. Therefore, the portion of this funding that would be specifically directed to the border fence cannot be precisely determined. However, according to CBP Congressional Affairs, the President‘s $1,000 million FY2008 request for BSFIT included $196 million in fence-related funding.133 P.L. 110-161 also withheld $650 million of the funding provided for SBInet until an expenditure plan is received and approved by the House and Senate Appropriations Committees.

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Proposed Legislation In addition to the Consolidated Appropriations Act, a number of bills were introduced in the 110th Congress that included provisions relating to the construction of border fencing. Although the following analysis is not intended to provide a comprehensive list of every bill introduced that had fencing provisions, it does provide an overview of the main types of fence-related bills that have been introduced and their overarching themes. Prior to enactment of the Consolidated Appropriations Act, a number of other bills were introduced in the 110th Congress that would have expanded or underlined the Secretary of Homeland Security‘s authority to construct fencing at the border. H.R. 4192, H.R. 3638, and H.R. 2954 would have directed the President to construct the fencing authorized by the Secure Fence Act. S. 2348 would have authorized $3 billion in emergency funding for a variety of border security purposes, including the construction of 700 miles of fencing. S. 2294 and S. 1984 would have called for the construction of 700 miles of fencing and 300 miles of vehicle barriers within two years of enactment. S. 1269 would have called for the construction of double layer fencing along the border from the Pacific Ocean to the Gulf of Mexico. S. 330 would have called for replacing existing fencing in Tucson and Yuma sectors with double layer fencing and constructing a total of 370 miles of fencing and 500 miles of vehicle barriers along the border.

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The issue of barriers at the border was also of interest to the 110th Congress as a component of the larger immigration debate. During May and June 2007, the Senate considered a number of comprehensive immigration reform measures (S. 1348, S.Amdt. 1150 to S. 1348, S. 1639), though cloture was unable to be achieved on any of these proposals. Both S.Amdt. 1150, as amended, and S. 1639, as introduced, included language concerning fencing at the border that was similar to that which was ultimately enacted as part of the Consolidated Appropriations Act for FY2008.134 Some comprehensive immigration reform proposals considered also included provisions that would have required that the construction of border barriers serve as a trigger mechanism for broader immigration reform to occur. S.Amdt. 1150, as introduced, would have required the construction of 370 miles of fencing and 200 miles of vehicle barriers before some provisions relating to legalization, adjustment of status, and temporary workers could take effect. In addition, S.Amdt. 1150 would have amended §102 of IIRIRA to expressly authorize the construction of the San Diego fence. During the initial Senate floor debate for S.Amdt. 1150, S.Amdt. 1172 was adopted by unanimous consent and amended the trigger mechanisms to require 300 miles of vehicle barriers. S. 1639, as introduced, included similar language to S.Amdt. 1150, as amended, concerning barriers at the border. S. 1639 would have required DHS to construct 370 miles of fencing and 300 miles of vehicle barriers as part of the trigger mechanisms required before some provisions relating to legalization, adjustment of status, and temporary workers could take effect. S. 1369 would also have expressly authorized the completion of the San Diego fence. A number of bills that were introduced in the second session of the 110th Congress would have amended the changes to the Secure Fence Act that were enacted by the Consolidated Appropriations Act of FY2008. H.R. 5568 would have inserted the word ―physical‖ before all previously enacted occurrences of the word ―fencing‖ (e.g., in the Secure Fence Act and §102 of IIRIRA). S. 2712 would have required that the 700 miles of reinforced fencing authorized by the Consolidated Appropriations Act be completed by December 31, 2010. H.R. 5124 would have required that the fencing constructed under the Act‘s authorization be double layer, at least 14 feet tall, and be completed within six months of the bill‘s enactment. In addition, the bill would have prohibited DHS from counting fencing in existence prior to January 1, 2008, toward the 700-mile total. H.R. 4987 would have replaced the 700-mile requirement enacted by the Consolidated Appropriations Act and replaced it with language, similar to that in the original Secure Fence Act, requiring five specific stretches of fencing to be constructed. H.R. 4960 would have repealed the consultation requirement enacted by the Consolidated Appropriations Act. Lastly, several introduced bills included other fencing provisions not directly related to the construction of fencing. H.R. 5728 would have established a Border Improvement Trust Fund and allow taxpayers to designate $5 ($10 for joint filers) from their annual income tax returns for this fund. The fund could have been used to pay for costs associated with constructing and maintaining fencing and barriers at the border. S. 2709 would have imposed a minimum sentence of five years for any alien convicted of damaging fencing or infrastructure (including cameras and sensors) at the border.

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APPENDIX B. LEGISLATION IN THE 109TH CONGRESS The 109th Congress enacted three pieces of legislation concerning border fencing, and considered several more. The REAL ID Act (P.L. 109-13), as previously noted, expanded DHS‘s waiver authority to expedite the construction of border fencing. The Secure Fence Act of 2006 (P.L. 109367) directed DHS to construct five stretches of border fencing totaling roughly 850 miles.135 The FY2007 DHS Appropriations Act (P.L. 109-295) provided $1.2 billion for the installation of fencing, infrastructure, and technology along the border; $31 million of this total was designated for the completion of the San Diego fence.136 In addition to these Acts, a number of bills with fencing related provisions were passed by the House and the Senate. H.R. 4437, which would have directed DHS to construct five stretches of fencing along the border, was passed by the House on December 16, 2005. S. 2611, which called for 370 miles of fencing to be constructed, was passed by the Senate on May 25, 2006. S.Amdt. 4788 was added to the Department of Defense Appropriation bill, H.R. 5631, on August 2, 2006, and would have appropriated $1.8 billion to the National Guard for the construction of border fencing. H.R. 5631 was passed by the Senate on September 7, 2006; however, this fencing provision was stripped from the bill during conference. P.L. 109-295, the FY2007 DHS Appropriations Act, provided $1.2 billion in funding for border fencing, infrastructure, and technology; combined with the supplemental appropriation provided by P.L. 109-234, the conferees noted that DHS would have $1.5 billion for border infrastructure construction in FY2007.137 The conferees directed DHS to submit an expenditure plan for this funding within 60 days of the bill‘s enactment, and withheld $950 million of the funding until the plan is received and approved by the House and Senate Committees. However, the Act did not place any restrictions on how DHS is to apportion this appropriation between fencing, infrastructure, and technology. In addition to the bills discussed above, there were a number of bills in the 109th Congress that would have expanded the current fencing and other forms of barriers at the international land border. Some of these bills would have required fencing to be constructed along the entire southwest border, others would have identified particular stretches of land which would receive fencing, and still others would have called for studies to determine whether fencing is a cost-effective way of securing the border.138

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APPENDIX C. EXAMPLES OF USBP BORDER FENCING

Source: U.S. Department of Justice, Immigration and Naturalization Service, Environmental Assessment forInfrastructure Within U.S. Border Patrol Naco-Douglas Corridor Cochise County, Arizona, August, 2000, p. 1-13.

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APPENDIX D. THE SAN DIEGO FENCE

Source: U.S. Department of Homeland Security; Environmental Impact Statement for the Completion of the 14-Mile Border Infrastructure System San Diego, California, July 2003. United States Border Issues, Nova Science Publishers, Incorporated, 2009. ProQuest Ebook Central,

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APPENDIX E. PERMANENT VEHICLE BARRIER SCHEMATIC

Source: U.S. Department of the Interior, National Park Service, Proposed Vehicle Barrier Environmental Assessment, April, 2003.

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APPENDIX F. PERMANENT VEHICLE BARRIERS

Source: CBP Congressional Affairs. Data from Figure 4.

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APPENDIX G. DATA FROM FIGURE 4 Table G-1. Data from Figure 4

Other San Diego Sector Stations Chula Vista Station Imperial Beach Station Tucson

FY1992

FY1993

FY1994

FY1995

FY1996

FY1997

FY1998

FY1999

FY2000

FY2001

FY2002

FY2003

FY2004

204,456

210,129

155,386

262,505

297,423

189,321

160,781

140,640

113,866

85,815

87,195

96,752

119,293

158,952

156,273

107,872

141,096

111,413

67,804

72,648

27,085

19,453

9,627

3,080

4,545

9,923

202,173

165,287

186,894

120,630

74,979

27,865

15,832

15,974

19,815

15,480

11,405

10,218

9,112

71,036

92,639

139,473

227,529

305,348

272,397

387,406

470,449

616,346

449,675

333,648

347,263

490,827

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Source: CRS Presentation of CBP data.

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APPENDIX H. LEGAL REQUIREMENTS WAIVED BY DHS FOR THE CONSTRUCTION OF THE SAN DIEGO BORDER FENCE Laws Waived National Environmental Policy Act (NEPA) 16 U.S.C. §§ 4321 et seq.

Endangered Species Act (ESA) 16 U.S.C. §§ 1531 et seq.

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Costal Zone Management Act (CZMA) 16 U.S.C. §§ 1451 et seq.

Federal Water Pollution Control Act (Clean Water Act) 33 U.S.C. §§ 1251 et seq. National Historic Preservation Act (NHPA) 16 U.S.C. §§ 470 et seq.

Migratory Bird Treaty Act (MTBA) 16 U.S.C. §§ 703 et seq.

General Requirements Under NEPA, an environmental impact statement must be prepared for ―every recommendation or report on proposals for legislation and other major federal actions significantly affecting the quality of the human environment.‖ If an agency is uncertain whether an action‘s impacts on the environment will be significant, it usually prepares an environmental assessment (EA). An EA is carried out to clarify issues and determine the extent of an action‘s environmental effects. NEPA also has public notice and comment requirements. Section 7 of the ESA mandates that each federal agency consult with the Fish and Wildlife Service (FWS) or National Marine Fishery Services (NMFS), depending on the listed species involved, to ensure that its actions are ―not likely to jeopardize the continued existence of any endangered species or threatened species, or result in the destruction or adverse modification of‖ designated critical habitat. Once consulted, FWS or NMFS must, if listed endangered species might be affected, prepare a biological opinion to determine the actual impact of the proposed action. Mitigation measures could be required. The CZMA requires federal agency activity within or outside the coastal zone that affects any land or water use or natural resource of the coastal zone to be carried out in a manner that is consistent to the maximum extent practicable with the policies of an approved state management program. The federal agency must submit a consistency determination to the applicable state agency. Section 404 of the Clean Water Act establishes a program to regulate the discharge of dredged or fill material into waters of the United States, including wetlands. Section 404 requires a permit before dredged or fill material may be discharged into waters of the United States, unless the activity is exempt. In accordance with the NHPA and its implementing regulations, 36 CFR Part 800, sites determined to be eligible for inclusion in the National Register of Historic Places must be protected, either through avoidance or other mitigative action, from direct and indirect impacts. The NHPA also has procedural requirements, including public notice and comment. Section 2 of the MTBA sets out the types of prohibited conduct and states: ―Unless and except as permitted by regulations ... it shall be unlawful at any time, by any means, or in any manner, to pursue, hunt, take, capture, kill, attempt to do these acts, [or] possess ... any migratory bird, [or] any part, nest, or eggs of any such bird ‖ Violations of the MTBA may result in civil or criminal penalties.

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Laws Waived Clean Air Act (CAA) 42 U.S.C. §§ 7401 et seq.

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Administrative Procedure Act (APA) 5 U.S.C. §§ 551 et seq.

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General Requirements The Clean Air Act requires the Environmental Protection Agency to establish minimum national standards for air quality, known as National Ambient Air Quality Standards (NAAQS), and assigns primary responsibility to the states to assure compliance with the standards. Areas not meeting the standards, referred to as ―nonattainment areas,‖ are required to implement specified air pollution control measures. Federal actions located in NAAQS nonattainment areas must comply with the federal general air conformity rule set forth by the CAA and codified in 40 CFR Part 51. The general conformity rule requires federal agencies to ensure that actions undertaken in nonattainment or maintenance areas are consistent with the applicable state plan. The states administer the CAA through a comprehensive permitting program. The APA establishes the general procedures that an agency must follow when promulgating a legislative rule. An agency must publish a notice of proposed rulemaking in the Federal Register, afford interested persons an opportunity to participate in the proceeding through the submission of written comments or, at the discretion of the agency, by oral presentation, and when consideration of the matter is completed, incorporate in the rules adopted ―a concise general statement of their basis and purpose.‖ A final rule must be published in the Federal Register ―not less than 30 days before its effective date.‖

APPENDIX I. LEGAL REQUIREMENTS WAIVED BY DHS FOR THE CONSTRUCTION OF PHYSICAL BARRIERS AND ROADS IN THE VICINITY OF THE BARRY M. GOLDWATER RANGE IN SOUTHWEST ARIZONA Laws Waived National Environmental Policy Act (NEPA) 16 U.S.C. §§ 4321 et seq. Endangered Species Act (ESA) 16 U.S.C. §§ 1531 et seq. Federal Water Pollution Con-trol Act (Clean Water Act) 33 U.S.C. §§ 1251 et seq. Wilderness Act , 16 U.S.C. §§ 1131 et seq.

General Requirements See Appendix H for description of requirements. See Appendix H for description of requirements. See Appendix H for description of requirements.

The Wilderness Act established a National Wilderness Preservation System on federal lands ―where the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain.‖ Within designated wilderness areas, section 4(c) of the Act generally prohibits structures or installations, motor vehicle or other forms of mechanical transport, and temporary roads.

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National Historic Preservation Act (NHPA) 16 U.S.C. §§ 470 et seq. National Wildlife Refuge System Administration Act, 16 U.S.C. §§ 668dd-668ee.

Military Lands Withdrawal Act of 1999 (P.L. 106-65, 113 Stat. 885 (Oct. 5, 1999).

Sikes Act, 16 U.S.C. §§ 670 et seq.

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Administrative Procedure Act (APA) 5 U.S.C. §§ 551 et seq.

See Appendix H for description of requirements. The National Wildlife Refuge System (NWRS) was primarily established to ensure the conservation of fish, wildlife, and plants. Designated areas may be used for other purposes (e.g., hunting, timber harvest, and grazing) only to the extent that such activities are compatible with the purposes for which the refuge was created. The refuges are managed by the Fish and Wildlife Service. The Military Lands Withdrawal Act of 1999 withdrew the lands within the Barry M. Goldwater Range and generally reserved such lands to the Secretaries of the Air Force and the Navy for military purposes. The Secretaries of the Air Force, Navy, and Interior were required to establish an integrated natural resource plan (INRP) which, among other things, provided that ―all gates, fences, and barriers constructed on such lands ... be designed and erected to allow wildlife access, to the extent practicable and consistent with military security, safety, and sound wildlife management use.‖ The Sikes Act requires the Secretary of Defense to carry out a program providing for the conservation and rehabilitation of na-tural resources on military installations (e.g., public lands with-drawn or reserved for use by a military department), pursuant to an INRP prepared in cooperation with the Secretary of the Interior. See Appendix H for description of requirements.

APPENDIX J. LEGAL REQUIREMENTS WAIVED BY DHS FOR THE CONSTRUCTION OF PHYSICAL BARRIERS AND ROADS IN THE VICINITY OF THE SAN PEDRO RIPARIAN NATIONAL CONSERVATION AREA IN SOUTHEAST ARIZONA Laws Waived National Environmental Policy Act (NEPA) 16 U.S.C. §§ 4321 et seq. Endangered Species Act (ESA) 16 U.S.C. §§ 1531 et seq. Federal Water Pollution Control Act (Clean Water Act) 33 U.S.C. §§ 1251 et seq. National Historic Preservation Act (NHPA) 16 U.S.C. §§ 470 et seq. Migratory Bird Treaty Act (MTBA) 16 U.S.C. §§ 703 et seq.

General Requirements See Appendix H for description of requirements. See Appendix H for description of requirements. See Appendix H for description of requirements.

See Appendix H for description of requirements. See Appendix H for description of requirements.

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Noise Control Act (NCA) 42 U.S.C. §§ 4901 et seq.

Solid Waste Disposal Act (SWDA), as amended by the Resource Conservation

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and Recovery Act (RCRA) 42 U.S.C. §§ 6901 et seq. Comprehensive Environmntal Response, Compensation, and Liability Act (CERCLA) 42 U.S.C. §§ 9601 et seq.

Federal Land Policy and Management Act (FLPMA) 43 U.S.C. §§ 1701 et seq.

181

See Appendix H for description of requirements. The Archeological Resources Protection Act generally prohibits the damage, removal, excavation, or alteration of any archeological resource located on public lands or Indian lands, except pursuant to a permit issued by the appropriate federal land manager. The Safe Drinking Water Act provides federal authority for the establishment of standards and treatment requirements for public water supplies, control of the underground injection of wastes, and protection of sources of drinking water. Federal agencies involved in certain activities that may contaminate drinking water are subject to all federal, state, and local requirements concerning the protection of water systems to the same extent as any person is subject to such requirements. Pursuant to the Noise Control Act, the federal government has established standards for maximum sound levels generated from a variety of products. In addition, section 4 of the NCA requires federal agencies, subject to presidential exemption, to comply with federal, state, interstate, and local requirements respecting control and abatement of environmental noise to the same extent that any person is subject to such requirements. Through the SWDA, as amended by RCRA, entities that transport or produce solid or hazardous waste are required to comply with regulations concerning the management, management of solid waste or hazardous waste is subject to all federal, state, and local requirements concerning such waste to the same extent as any person is subject to such requirements. CERCLA established broad federal authority to respond to the release or threatened release of hazardous substances. Among other things, it established requirements for closed and abandoned hazardous waste sites, and provided for liability of persons responsible for the release of hazardous waste at these locations. Federal agencies and instrumentalities are subject to these requirements to the same extent as nongovernmental entities, including with respect to liability. The Federal Land Policy and Management Act establishes guidelines for the management and protection of federal public lands, as administered by the Secretary of the Interior through the Bureau of Land Management (in coordination with the Secretary of Agriculture with respect to lands in the National Forest System), and imposes procedural requirements for land transfers and exchanges. In developing land use plans, the Secretary is required to consider protection of areas of critical environmental concern and compliance with federal and state pollution control laws. The Secretary of the Interior, with respect to the public lands, and, the Secretary of Agriculture, with respect to lands within the National Forest System, are authorized to grant rights-of-way through such lands to other federal agencies, subject to terms and conditions imposed by the Secretary authorizing the right-of-way.

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Fish and Wildlife Coordination Act (FWCA) 16 U.S.C. §§ 661 et seq.

Archaeological and Historic Preservation Act (AHPA) 16 U.S.C. §§ 469 et seq.

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Antiquities Act 16 U.S.C. §§ 431 et seq.

Historic Sites, Buildings, and Antiquities Act (HSBAA) 16 U.S.C. §§ 461 et seq.

Arizona-Idaho Conservation Act of 1988 16 U.S.C.§§ 460xx et seq.

(Continued) The Fish and Wildlife Coordination Act generally provides that whenever the waters of any stream or other body of water are proposed to be modified by a federal agency, the agency must first consult with the United States Fish and Wildlife Service, Department of the Interior, and the head of the agency exercising administration over the wildlife resources of the state where the construction will occur, with a view to the conservation of wildlife resources. The purpose of the Archeological and Historical Preservation Act is to provide for the preservation of historical and archeological data which might otherwise be irreparably lost or destroyed as the result of, among other things, any alteration of terrain caused by a federal construction project. If a federal agency becomes aware that its activities in connection with a construction project may cause irreparable loss or destruction of significant scientific, prehistorical, historical, or archeological data, the agency must notify the Secretary of the Interior. If the Secretary deems such data to be significant and in danger of being irrevocably lost or destroyed, he is authorized to take action to protect and recover it. The Antiquities Act authorizes the President to declare as nationnal monuments historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest. This land is then withdrawn from any other use. The Secretaries of the Interior, Agriculture, and the Army may issue permits to qualified scientific or educational institutions for the excavation of archaeological sites and gathering of objects of antiquity on lands under their respective jurisdictions. Penalties are provided for damaging resources protected under the Act. The Historic Sites, Buildings, and Antiquities Act declares it the national policy to preserve histories, sites, buildings, and objects of national significance. The Secretary of the Interior, through the National Park Service, is charged with implementing the policy of the HSBAA, including through the acquisition, maintenance, administration of historic sites. Persons who violate any rules or regulations promulgated under the HSBAA may be subject to a fine. The Arizona-Idaho Conservation Act established the San Pedro Riparian National Conservation Area, consisting of public lands surrounding the San Pedro River in Cochise County, Arizona. The Secretary of the Interior is responsible for managing the area in a manner that conserves and protects its wildlife and other resources. The Secretary may only permit uses of the conservation area that are determined to further the primary purposes for which the conservation area was established. Except in limited circumstances, motorized vehicles are permitted only on designated roads. Persons who violate the Act or its implementing regulations are subject to a fine and/or imprisonment.

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Border Security: Barriers along the U.S. International Border Wild and Scenic Rivers Act 16 U.S.C. §§ 1281 et seq.

Farmland Protection Policy Act (FPPA) 7 U.S.C. §§ 4201 et seq.

Administrative Procedure Act (APA) 5 U.S.C. §§ 551 et seq.

183

The Wild and Scenic Rivers Act establishes a National Wild and Scenic Rivers System (System) protecting rivers and adjacent lands with important scenic, recreational, geologic, fish and wildlife, historic, cultural, or other similar values. Components of the System are to be administered in a manner that protects and enhances the free-flowing and undeveloped nature of areas covered by the Act. The Farmland Protection Policy Act requires the Department of Agriculture, in cooperation with other federal entities, to develop criteria for identifying the effects of federal programs on the conversion of farmland to nonagricultural uses. Federal agencies are thereafter required to use this criteria to identify farmland that is converted by federal programs and take into account the adverse effects of such programs on the preservation of farmland. Agencies must consider alternative actions, as appropriate, that could lessen such adverse effects. See Appendix H for description of requirements.

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APPENDIX K. LEGAL REQUIREMENTS WAIVED BY DHS FOR THE CONSTRUCTION OF PHYSICAL BARRIERS AND ROADS IN HIDALGO COUNTY, TEXAS Laws Waived National Environmental Policy Act (NEPA) 16 U.S.C. §§ 4321 et seq. Endangered Species Act (ESA) 16 U.S.C. §§ 1531 et seq. Federal Water Pollution Control Act (Clean Water Act) 33 U.S.C. §§ 1251 et seq. National Historic Preservation Act (NHPA) 16 U.S.C. §§ 470 et seq. Migratory Bird Treaty Act (MTBA) 16 U.S.C. §§ 703 et seq. Clean Air Act (CAA) 42 U.S.C. §§ 7401 et seq. Archeological Resources Protection Act (ARPA) 16 U.S.C. §§ 470aa et seq.

General Requirement See Appendix H for description of requirements. See Appendix H for description of requirements. See Appendix H for description of requirements.

See Appendix H for description of requirements. See Appendix H for description of requirements. See Appendix H for description of requirements. See Appendix J for description of requirements.

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Safe Drinking Water Act (SDWA) 42 U.S.C. §§ 300f et seq. Noise Control Act (NCA) 42 U.S.C. §§ 4901 et seq. Solid Waste Disposal Act (SWDA), as amended by the Resource Conservation and Recovery Act (RCRA) 42 U.S.C. §§ 6901 et seq. Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) 42 U.S.C. §§ 9601 et seq. Federal Land Policy and Management Act (FLPMA) 43 U.S.C. §§ 1701 et seq. Fish and Wildlife Coordination Act (FWCA) 16 U.S.C. §§ 661 et seq. Archaeological and Historic Preservation Act (AHPA) 16 U.S.C. §§ 469 et seq. Antiquities Act 16 U.S.C. §§ 431 et seq. Historic Sites, Buildings, and Antiquities Act (HSBAA) 16 U.S.C. §§ 461 et seq. Farmland Protection Policy Act (FPPA) 7 U.S.C. §§ 4201 et seq. Administrative Procedure Act (APA) 5 U.S.C. §§ 551 et seq. Coastal Zone Management Act (CZMA) 16 U.S.C. §§ 1451 et seq. National Wildlife Refuge System Administration Act 16 U.S.C. §§ 668dd668ee

(Continued) See Appendix J for description of requirements. See Appendix J for description of requirements. See Appendix J for description of requirements.

See Appendix J for description of requirements.

See Appendix J for description of requirements.

See Appendix J for description of requirements.

See Appendix J for description of requirements.

See Appendix J for description of requirements. See Appendix J for description of requirements.

See Appendix J for description of requirements. See Appendix H for description of requirements. See Appendix H for description of requirements.

See Appendix I for description of requirements.

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Rivers and Harbors Act of 1899 33 U.S.C. § 403

Eagle Protection Act 16 U.S.C. §§ 668 et seq.

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Native American Graves Protection and Repatriation Act (NAGPRA) 25 U.S.C. §§ 3001 et seq.

American Indian Religious Freedom Act (AIRFA) 42 U.S.C. § 1996 Religious Freedom Restoration Act 42 U.S.C. § 2000bb Federal Grant and Cooperative Agreement Act of 1977 31 U.S.C. §§ 6303-6305

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The Fish and Wildlife Act establishes a comprehensive national fish, shellfish, and wildlife resources policy. The law requires the Secretary of Interior to develop measures for ―maximum sustainable production of fish,‖ make economic studies of the industry and recommend measures to insure the stability of fisheries, take steps ―required for the development, management, advancement, conservation and protection of the fisheries resources,‖ and take steps ―required for the development, management, advancement, conservation, and protection of fish and wildlife resources‖ through research, acquisition of land or water, development of existing facilities, and other means. The Rivers and Harbors Act makes it a misdemeanor to discharge refuse into the navigable waters of the United States without a permit. It also makes it a misdemeanor to excavate, fill, or alter the course, condition, or capacity of any port, harbor, channel, or other area within the reach of the Act without a permit. The Eagle Protection Act provides for the protection of the bald eagle and the golden eagle by prohibiting the taking, possession, and commerce of such birds. The Native American Graves Protection and Repatriation Act requires federal agencies and institutions receiving federal funding to return Native American cultural items and human remains to their respective people. If federal officials anticipate that activities on federal and tribal land might have an effect on American Indian burial, or their activities inadvertently discover such burials, they must consult with American Indian tribal officials as part of their compliance duties. The American Indian Religious Freedom Act ensures American Indian groups access to religious sites by directing federal agencies to consult with American Indian spiritual leaders to determine appropriate procedures to protect access and other religious rights. The Religious Freedom Restoration Act mandates that strict scrutiny be applied when a violation of the Free Exercise Clause of the First Amendment is committed by a federal actor. The Federal Grant and Cooperative Agreement Act governs the use of ―non-standard‖ agreements, such as grants or cooperative agreements offered by federal agencies. This Act imposes standards mandating the use of procurement contracts in some situations while allowing the use of non-standard agreements in other situations.

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APPENDIX L. LEGAL REQUIREMENTS WAIVED BY DHS FOR THE CONSTRUCTION OF PHYSICAL BARRIERS AND ROADS AT VARIOUS PROJECT AREAS LOCATED IN CALIFORNIA, ARIZONA, NEW MEXICO, AND TEXAS Laws Waived National Environmental Policy Act (NEPA) 16 U.S.C. §§ 4321 et seq. Endangered Species Act (ESA) 16 U.S.C. §§ 1531 et seq. Federal Water Pollution Control Act (Clean Water Act) 33 U.S.C. §§ 1251 et seq. National Historic Preservation Act (NHPA) 16 U.S.C. §§ 470 et seq. Migratory Bird Treaty Act (MTBA) 16 U.S.C. §§ 703 et seq. Clean Air Act (CAA) 42 U.S.C. §§ 7401 et seq. Archeological Resources Protection Act (ARPA) 16 U.S.C. §§ 470aa et seq. Safe Drinking Water Act (SDWA) 42 U.S.C. §§ 300f et seq. Noise Control Act (NCA) 42 U.S.C. §§ 4901 et seq. Solid Waste Disposal Act (SWDA), as amended by the Resource Conservation and Recovery Act (RCRA) 42 U.S.C. §§ 6901 et seq. Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) 42 U.S.C. §§ 9601 et seq. Federal Land Policy and Management Act (FLP-MA) 43 U.S.C. §§ 1701 et seq.

General Requirement See Appendix H for description of requirements. See Appendix H for description of requirements. See Appendix H for description of requirements.

See Appendix H for description of requirements. See Appendix H for description of requirements. See Appendix H for description of requirements. See Appendix J for description of requirements. See Appendix J for description of requirements. See Appendix J for description of requirements. See Appendix J for description of requirements.

See Appendix J for description of requirements.

See Appendix J for description of requirements.

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Laws Waived Fish and Wildlife Coordination Act (FWCA) 16 U.S.C. §§ 661 et seq. Archaeological and Historic Preservation Act (AHPA) 16 U.S.C. §§ 469 et seq. Antiquities Act 16 U.S.C. §§ 431 et seq. Historic Sites, Buildings, and Antiquities Act (HSBAA) 16 U.S.C. §§ 461 et seq. Farmland Protection Policy Act (FPPA) 7 U.S.C. §§ 4201 et seq. Administrative Procedure Act (APA) 5 U.S.C. §§ 551 et seq. Coastal Zone Management Act (CZMA) 16 U.S.C. §§ 1451 et seq. National Wildlife Refuge System Administration Act 16 U.S.C. §§ 668dd668ee Fish and Wildlife Act of 1956 16 U.S.C. §§ 742a et seq. Rivers and Harbors Act of 1899 33 U.S.C. § 403 Eagle Protection Act 16 U.S.C. §§ 668 et seq. Native American Graves Protection and Repatriation Act (NAGPRA) 25 U.S.C. §§ 3001 et seq. American Indian Religious Freedom Act (AIRFA) 42 U.S.C. § 1996 Religious Freedom Restoration Act 42 U.S.C. § 2000bb

(Continued) General Requirement See Appendix J for description of requirements.

See Appendix J for description of requirements.

See Appendix J for description of requirements. See Appendix J for description of requirements.

See Appendix J for description of requirements. See Appendix H for description of requirements. See Appendix H for description of requirements. See Appendix I for description of requirements.

See Appendix K for description of requirements. See Appendix K for description of requirements. See Appendix K for description of requirements. See Appendix K for description of requirements.

See Appendix K for description of requirements.

See Appendix K for description of requirements.

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Laws Waived Wild and Scenic Rivers Act 16 U.S.C. § 1281 et seq. The Wilderness Act 16 U.S.C. §§ 1131a et seq. Otay Mountain Wilderness Act of 1999 P.L. 106-145 Section 102(29) and 103 of Title I of the California Desert Protection Act P.L. 103-433, 50 Stat. 1827 National Park Service General Authorities Act 16 U.S.C. §§ 1a-1 et seq.

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Sections 401(7), 403, and 404 of the National Parks and Recreation Act 0f 1978 P.L. 95-625 Sections 301(a)-(f) of the Arizona Desert Wilderness Act P.L. 101-628

National Forest Management Act of 1976 16 U.S.C. §§ 1600 et seq. Multiple Use and Sustained Yield Act of 1960 16 U.S.C. §§ 528-531 Federal Land Policy and Management Act (FLPMA) 43 U.S.C. §§ 1701 et seq.

(Continued) General Requirement See Appendix J for description of requirements. See Appendix I for description of requirements. The Otay Mountain Wilderness Act designates certain public lands in California as ―wilderness‖ to be protected under the Wilderness Act. Any lands acquired by the United States within the designated area shall become part of the ―wilderness area‖ and subject to the protections of the Wilderness Act. The California Desert Protection Act designates certain lands within the Inyo National Forest as ―wilderness‖ to be protected under the Wilderness Act. The National Park Service General Authorities Act is the organic statute for the National Parks Service. The Act calls for the preservation of certain lands and empowers the National Parks Service to issue regulations and manage these lands. The National Parks and Recreation Act designates the Organ Pipe Cactus National Monument in Arizona as ―wilderness‖ to be administered under the Wilderness Act. The Arizona Desert Wilderness Act designates certain lands in the Havasu National Wildlife Refuge, Imperial National Wildlife Refuge, Kofa National Wildlife Refuge, and Cabeza Prieta National Wildlife Refuge (all in Arizona) as components of the National Wilderness Preservation System to be administered under the Wilderness Act. The National Forest Management Act is the organic statute for the National Parks Service. It empowers the Secretary of the Interior to administer the national park system. The Multiple Use and Sustained Yield Act declares that nationnal forests are for outdoor recreation, range, timber, watershed, and fish and wildlife purposes. It seeks to ensure that the national forest are managed in furtherance of these purposes and in a sustainable manner. See Appendix J for description of requirements.

End Notes 1

8 U.S.C. §1103 (a)(5). Although the law still cites to the Attorney General, the authorities granted by this section now appear to rest with the Secretary of DHS. See The Homeland Security Act of 2002, P.L. 104-208, §§102(a), 441, 1512(d) and 1517 (references to the Attorney General or Commissioner in statute and regulations are deemed to refer to the Secretary of DHS).

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For more information on the San Diego border fence, please refer to CRS Report RS22026, Border Security: The San Diego Fence, by Blas Nuñez-Neto and Michael John Garcia. 3 For an expanded discussion of the USBP, please refer to CRS Report RL32562, Border Security: The Role of the U.S. Border Patrol, by Blas Nuñez-Neto. 4 U.S. Government Accountability Office, Border Control—Revised Strategy Is Showing Some Positive Results, GAO/GGD-95-30, January 31, 1995. (Hereafter referred to as GAO Report 95-30.) 5 See P.L. 104-208, Div. C. IIRIRA was passed as part of the Omnibus Consolidated Appropriations Act of 1997. 6 P.L. 109-13. 7 From CBP Congressional Affairs, September 25, 2006. 8 U.S. Department of Justice, Office of the Inspector General, Operation Gatekeeper: An Investigation Into Allegationsof Fraud and Misconduct, July 1998, available at http://www.usdoj.gov/oig/ special/9807/gkp01.htm#P160_18689. 9 GAO Report 95-30. 10 U.S. Department of Justice, Office of the Inspector General, Operation Gatekeeper: An Investigation Into Allegations of Fraud and Misconduct, July 1998, at http://www.usdoj.gov/oig/special/9807/index.htm. (Hereafter referred to as DOJ-OIG Gatekeeper Report.) 11 DOJ-OIG Gatekeeper Report. 12 U.S. Department of Justice, Immigration and Naturalization Service, ―Operation Gatekeeper Fact Sheet,‖ July 14, 1998. 13 DOJ-OIG Gatekeeper Report. 14 See California Coastal Commission, W 13a Staff Report and Recommendation on Consistency Determination, CD063-03, October 2003 [hereinafter ―CCC Staff Report‖], at 14-16 (stating that construction of the primary fence significantly assisted the USBP‘s efforts in deterring smuggling attempts via drive-throughs using automobiles and motorcycles). 15 GAO 95-30, p. 13. 16 GAO 95-30, p. 13. 17 Peter Andreas, ―The Escalation of U.S. Immigration Control in the Post-NAFTA Era,‖ Political Science Quarterly, vol. 113, no. 4, winter 1998-1999, p. 595. 18 8 U.S.C. §1103 (a)(5). 19 P.L. 104-208, §102. 20 The Consolidated Appropriations Act, 2008 (P.L. 110-161) amended IIRIRA § 102 to expressly refer to the Secretary of Homeland Security, rather than the Attorney General. Although IIRIRA § 102 previously referred to theAttorney General, the authorities granted by this section nonetheless appeared to rest with the Secretary of DHSfollowing the enactment of the Homeland Security Act of 2002. See P.L. 104-208, §§102(a), 441, 1512(d) and 1517(references to the Attorney General or Commissioner in statute and regulations are deemed to refer to the Secretary). 21 See CCC, Staff Report, supra note 14, at pp. 7 nt. 2 and 23 nt. 4. 22 The actual costs associated with constructing the San Diego fence have been considerably greater than anticipated by IIRIRA and will be discussed in more detail later in this chapter. 23 For more detailed discussion of the Secure Fence Act, see infra at ―The Secure Fence Act‖. 24 For more detailed discussion of the amendments made by the Consolidated Appropriations Act, see infra at ―The Secure Fence Act‖, . 25 Department of Homeland Security, Environmental Impact Statement for the Completion of the 14-mile Border Infrastructure System, San Diego, California (July 2003) [hereinafter ―EIS, San Diego Border Fence‖]. 26 P.L. 107-273, §201(a). 27 For further analysis concerning the REAL ID Act, see CRS Report RL32754, Immigration: Analysis of the Major Provisions of the REAL ID Act of 2005, by Michael John Garcia, Margaret Mikyung Lee, and Todd B. Tatelman. 28 As initially introduced as H.R. 418, the REAL ID Act required the Secretary of DHS to waive all laws necessary to ensure expeditious construction of the security barriers. H.R. 418 was passed by the House as a stand-alone piece of legislation, but was subsequently attached as an amendment to House-passed H.R. 1268, the emergency supplemental appropriations bill for FY2005. During conference, language was revised in H.R. 1268, so that the Secretary was authorized, but not required, to waive all legal requirements (instead of all laws) deemed necessary to ensure construction of the security barriers. The conferees also added provisions to the REAL ID Act which made waiver decisions effective upon publication in the Federal Register and permitted federal court review of waiver decisions only in limited circumstances. The conference version of H.R. 1268 was enacted on May 11, 2005. 29 Some courts, for instance, have found the notwithstanding phrase not dispositive in determining the preemptive effect of a statute. See, e.g., E.P. Paup v. Director, OWCP, 999 F.2d 1341, 1348 (9th Cir. 1993) (―we have determined that the phrase ‗[n]otwithstanding any other provision of law‘ is not necessarily preemptive‖); Oregon Natural Resources Council v. Thomas, 92 F.3d 792, 796 (9th Cir. 1996) (―We have repeatedly held that the phrase ‗notwithstanding any other law‘ is not always construed literally.‖). But see Puerto Rico v. M/V

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Emily S., 132 F.3d 818 (1st Cir. 1997) (interpreting notwithstanding clause of a liability statute as precluding application of any preexisting statutes that would otherwise circumscribe the later statute‘s effect); Schneider v. United States, 27 F.3d 1327 (8th Cir. 1994) (interpreting statute so as not to ―render meaningless [its use of] the phrase ‗notwithstanding any other provision of law‘‖). 30 ―[T]he Constitution is filled with provisions that grant Congress or the States specific power to legislate in certain areas,‖ Justice Black wrote for the Court, but ―these granted powers are always subject to the limitations that they may not be exercised in a way that violates other specific provisions of the Constitution.‖ Williams v. Rhodes, 393 U.S. 23, 29 (1968). 31 Some of these waiver provisions grant the President or the head of an Executive agency the authority to waive laws if deemed necessary in the national interest or in the interest of national defense. See, e.g., 10 U.S.C. §1107(a); 22 U.S.C. §2375(d); 29 U.S.C. §793; 42 U.S.C. §6212(b); 42 U.S.C. §6393(a)(2); 50 U.S.C. §2426(e). Examples of waiver authority with a congressional notification element include 15 U.S.C. §719f; 22 U.S.C. §2378; 22 U.S.C. §2371; and 41 U.S.C. §413. 32 P.L. 93-153, Title II, § 203 (1973); 43 U.S.C. §1652(c)-(d). 33 151 Cong. Rec. H557 (daily ed. February 10, 2005). 34 Dept. of Homeland Security, ―Determination Pursuant to Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 as Amended by Section 102 of the REAL ID Act of 2005,‖ 70 Federal Register 55622-02, September 22, 2005 [hereinafter ―DHS Notice‖]. 35 Dept. of Homeland Security, ―Determination Pursuant to Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 as Amended by Section 102 of the REAL ID Act of 2005 and as Amended by the Secure Fence Act of 2006,‖ 72 Federal Register 2535-01, January 19, 2007. 36 Defenders of Wildlife v. Bureau of Land Management, Case 1:07-cv-01801-ESH (D.D.C. 2007). Plaintiffs‘ request for a temporary restraining order can be viewed at http://www.defenders.org/resources/publications/ programs_and_policy/in_the_courts/san_pedro_border_wall_tro_filing.pdf. 37 Dept. of Homeland Security, ―Determination Pursuant to Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 as Amended by Section 102 of the REAL ID Act of 2005 and as Amended by the Secure Fence Act of 2006,‖ 72 Federal Register 60870-01,October 26, 2007. 38 Defenders of Wildlife v. Chertoff, 527 F. Supp. 2d 119 (D.D.C. 2007). Plaintiffs‘ amended complaint can be viewed at http://www.defenders.org/resources/publications/programs_and_policy/in_the_courts/ san_pedro_border_wall_amended_complaint.pdf. 39 Defenders of Wildlife v. Chertoff, 128 S. Ct. 2962 (2008). 40 Save Our Heritage Org. v. Gonzales, 533 F. Supp. 2d 58 (D.D.C. 2008) (granting defendants‘ motion to dismiss legal challenge seeking to halt construction of border fence, and finding the DHS Secretary‘s waiver authority to be constitutional); County of El Paso v. Chertoff, 2008 U.S. Dist. LEXIS 83045 (W.D. Tex. Aug. 29, 2008) (denying plaintiff‘s request for preliminary injunction barring construction of border fence, and finding DHS waiver authority to be constitutionally valid). 41 From CBP Congressional Affairs, September 25, 2006. 42 P.L. 110-161, Div. E, § 564. Unlike under prior law, the Consolidated Appropriations Act, as enacted, does not specify that reinforced fencing be ―at least 2 layers.‖ See P.L. 104-208, Div. C, § 102(b), as amended by P.L. 109-367, § 3. 43 Ibid. 44 See CCC, Staff Report, at 5-7. After California‘s Coastal Management Plan was approved by the National Oceanic and Atmospheric Administration pursuant to the CZMA in 1977, apparently all federal activities affecting coastal zone resources in California became subject to the CCC‘s regulatory purview. 45 16 U.S.C. §1456(c). 46 16 U.S.C. §1456(c)(1)(B). 47 DHS Notice, supra note 34. 48 H.Rept. 109-699, p. 130. 49 Interview with CBP Congressional Affairs, February 24 , 2009. 50 If the same person is apprehended multiple times attempting to enter the country in one year, each apprehension willbe counted separately by the USBP in generating their apprehension statistics. This means that apprehension statisticsmay overstate the number of aliens apprehended each year. 51 CBP provided apprehensions data for the stations within San Diego sector for the initial version of this chapter. However, CBP has subsequently refused to provide station-level data citing concerns that providing this data wouldjeopardize their operations. For this reason, this chapter does not include station-level data more recent than FY2004;nevertheless the data are valuable in showing the immediate impact of the fencing constructed in San Diego sector. 52 For more information on overall apprehension trends, please refer to CRS Report RL32562, Border Security: The Role of the U.S. Border Patrol, by Blas Nuñez-Neto. 53 CRS analysis of CBP data. 54 EIS, San Diego Border Fence.

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Defenders of Wildlife, On the Line—The Impacts of Immigration Policy on Wildlife and Habitat in the Arizona Borderlands, 2006, p. 26. (Hereinafter, Defenders of Wildlife, On the Line.) 56 Eilene Zimmerman, SFGate.com, Border protections imperil environment—Last wilderness area south of San Diego could be damaged, February 27, 2006, at http://www.sfgate.com/cgibin/article.cgi?file=/c/a/2006/02/27/ MNG2GHFBFL1.DTL&type=printable. 57 EIS, San Diego Border Fence, at 1-10. 58 Id. at 1-11. 59 See generally, Defenders of Wildlife, On the Line, p. 26. 60 Letter from Peter C. Sornsen, Acting Field Supervisor, U.S. Dept. of the Interior, to James Caffrey, Acting Director,Facilities & Engineering Division, Immigration and Naturalization Service, Re: Endangered Species Consultation forthe Proposed 14-Mile Border Infrastructure System (July 1, 2003) (on file with author). 61 8 U.S.C. §1103(b). 62 8 U.S.C. §1101 note (b)(2). 63 35 Stat. 2136. The reservation also extends sixty-feet from the margin of any river that forms the international boundary. This language, however, does not apply to lands that abut the Rio Grande River in Texas since there are nofederal ―public lands‖ in Texas. Title to most of the western territories was obtained by the United States from foreignpowers through purchase and treaty. Generally, the terms of acquisition provided for recognition of the few existingprivate property rights, but granted title over the vast non-private lands to the United States. Texas was an exception; itwas admitted by annexation in 1845, and retained title to all its public lands. See United States v. Denver, 656 P.2d 1, 5 n.2 (Co. 1982). 64 37 Stat. 1741. 65 Department of Homeland Security, Congressional Budget Justifications for Fiscal Year 2007, pg. CBP Construction 20. Hereafter referred to as DHS FY2007 Justifications. 66 FY2006 is an exception. Within the conference report, $35 million was identified for the Southwest Border Fence and $35 million was identified for the construction of vehicle barriers and other border infrastructure in Tucson sector. H.Rept. 109-241. 67 From e-mail correspondence with CBP, July 27, 2007. 68 From e-mail correspondence with CBP, July 19, 2007. 69 SBInet is the technological and infrastructure component of the Secure Border Initiative (SBI), a multifaceted approach to securing the border. In its FY2007 budget submission, DHS asserted that it had ―developed a three-pillar approach under the SBI that will focus on controlling the border, building a robust interior enforcement program, and establishing a Temporary Worker Program.‖ DHS FY2007 Justification, p. CBP S&E 4. 70 The FY2008 total enacted appropriation of for SBInet was $1,225 million; this total included an emergency appropriation of $1,053 million. However this may be somewhat misleading because the FY2008 request for the account, which had been fully funded by both the House and Senate Committees on Appropriation, was $1,000 million. The amount of additional funding (above the request) provided in FY2008 was thus $225 million and not $1,053 million. 71 DHS FY2009 Justification, p. CBP BSFIT 11. 72 From conversations with CBP Congressional Affairs, March 13, 2008. The Corps, however, oversees the environmental assessments and engineering studies for all fence projects. 73 H.R. 2638, as Enrolled by the House and the Senate, pp. 83-84. 74 From interviews with CBP, November 30, 2005 and September 13, 2006, and the Corps of Engineers, November 29, 2005. 75 Bollard fencing is comprised of vertical installations of solid concrete, metal spheres, or large posts, embedded into the ground at small enough intervals as to be impassable. Bollard fencing is difficult to compromise but expensive to install. See Appendix C for a depiction of bollard fencing. 76 Picket fencing is comprised of metal stakes set sufficiently close together as to be impassable. See Appendix C for adepiction of picket fencing. 77 Roughly 13 miles of these alternate forms of fencing have been constructed to date, according to an interview withCBP Congressional Affairs on September 13, 2006. 78 U.S. Army Corps of Engineers, Construction Engineering Research Laboratories, Engineering Life-Cycle CostComparison Study of Barrier Fencing Systems, USACERL Technical Report 99/28, February 1999, p. 14. Hereafterreferred to as Corps of Engineers Study. 79 Interview with CBP Congressional Affairs, September 13, 2006. 80 Telephone conversation with CBP, November 30, 2005. 81 The Corps of Engineers used 1997 dollars in their study. For the purposes of this chapter, the numbers predicted by the Corps were adjusted to 2005 dollars using the Gross Domestic Product (GDP) deflator, available athttp://www1.jsc.nasa.gov/bu2/inflateGDP.html. This website appears to be no longer operating; however, GDP deflatortables are also published by the Bureau of Economic Adjustment (BEA) at the Department of Commerce and areavailable at

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http://bea.gov/bea/dn/nipaweb/TableView.asp?SelectedTable=13&FirstYear=1997&LastYear=2005&Freq=yr . The actual predictions made by the Corps for constructing and maintaining primary fencing, in 1997 dollars, were $341,584 to $379,538 per mile forconstruction costs, and $1,534 to $15,629 per mile per year in maintenance costs. The 25-year life-cycle costs forconstructing and maintaining landing mat fencing were predicted to range between $4,725,572 and $7,340,098 per mile in 1997 dollars. 82 Corps of Engineers Study, p. 21. 83 Net present value is a term used by the Corps of Engineers in their life cycle costs analyses for construction projects. It amortizes the future costs of a project and shows what the entire costs of the project will be. In this case, these numbers represent 25 year predictions and have been adjusted from 1997 dollars to 2005 dollars using a GDP Deflator. 84 DHS published a Federal Register notice on September 22, 2005, declaring the waiver of, in their entirety, (1) the National Environmental Protection Act (42 U.S.C. 4321 et seq.); (2) the Endangered Species Act (16 U.S.C. 1531 et seq.); (3) the Coastal Zone Management Act (16 U.S.C. 1451 et seq.); (4) the Federal Water Pollution Control Act (33 U.S.C. §§1251 et seq.); (5) the National Historic Preservation Act (16 U.S.C. §§470 et seq.); (6) the Migratory Bird Treaty Act (16 U.S.C. §§703 et seq.); (7) the Clean Air Act (42 U.S.C. §§7401 et seq.); and (8) the Administrative Procedure Act (5 U.S.C. §§551 et seq.). 85 DHS FY2007 Justifications, p. CBP Construction 18. 86 The numbers used by the Corps of Engineers were cited in 1997 dollars. They have been adjusted to 2005 dollars using the GDP deflator cited above. The actual costs per mile in the Corps of Engineers Study were: $691,680 to $768,533 for construction, and $839 to $6,715 for maintenance. Net Present Value after 25 years in 1997 dollars ranged from $9.73 million to $54.23 million. Corps of Engineer Study, pp. 3 and 23. 87 Jonathan Athens, ―Officials say OK to Border Fence,‖ YumaSun.com (July 20, 2005) available at http://sun.yumasun.com/google/ysarchive14980.html. 88 DHS FY2007 Justifications, pg. CBP Construction-7. CBP project length does not include the 30 miles of vehicle barriers maintained by the National Park Service. 89 DHS FY2007 Justifications, pg. CBP Construction-18. It is unclear why the project is predicted to take less time with contractors, and yet the overall completion date for the construction is predicted to be 2011. 90 From the National Park Service, February 9, 2006. The National Park Service notes that 30 miles of permanent vehicle barriers are being built at the Organ Pipe Cactus National Monument, and one mile is being built in the Coronado National Monument. 91 U.S. Department of Justice, Immigration and Naturalization Service, Final Environmental Assessment U.S. Border Patrol Temporary Vehicle Barriers Naco and Douglas, Arizona, November 2002. 92 SBInet forms part of the Secure Border Initiative, which DHS has billed as a multifaceted approach to securing theborder. DHS FY2007 Justifications, pg. CBP S&E-4. 93 Department of Homeland Security, Customs and Border Protection, ―Fence Lab To Test Effective Low CostSolutions,‖ Secure Border Initiative Monthly, April 2007. 94 Presentation given by Rowdy Adams, SBI Deputy Executive Director, Department of Homeland Security, at theBorder Management Summit, October 23, 2007. 95 From CBP Congressional Affairs, March 13, 2008. 96 Ibid. 97 Presentation given by Rowdy Adams, SBI Deputy Executive Director, Department of Homeland Security, at the Border Management Summit, October 23, 2007. 98 Testimony of GAO Director of Homeland Security and Justice Issues Richard Stana, in U.S. Congress, Committee on Appropriations, Subcommittee on Homeland Security, DHS Has Taken Actions to Strengthen Border Security Programs and Operations, But Challenges Remain, 110th Cong., 2nd Sess., March 6, 2009. Hereafter referred to as GAO Border Security Testimony. 99 From CBP Congressional Affairs, February 24, 2009. 100 For the views of supporters of border fencing, refer to ―We Need a Fence,‖ available at http://www.weneedafence.com/, and Thomas Sowell, ―Let‘s Get Our Terms Straight,‖ available at http://www.annistonstar.com/opinion/2006/as-insight-0402-0-6d01s3130.htm. 101 For the views of opponents of border fencing, refer to Eilene Zimmerman, ―Against the Wall,‖ Salon, December 12, 2005, at http://dir.salon.com/story/news/feature/2005/12/12/border_wall/index.html, and Molly Ivins, ―Another Brick in the Wall,‖ available at http://www.annistonstar.com/opinion/2006/as-insight-0402-06d01s3130.htm. 102 As previously noted on pages 19-21, these numbers reflect Corps figures for the construction and 25-year life cycle costs associated with erecting primary landing mat and secondary Sandia fencing along the border. The Corps study used 1997 dollars, which have been adjusted by CRS using a GDP deflator to 2005 dollars. The actual predictions made by the Corps for constructing and maintaining primary fencing, in 1997 dollars, were $341,584 to $379,538 per mile for construction costs, and $1,534 to $15,629 per mile per year in maintenance costs. The 25-year life-cycle costs for constructing and maintaining landing mat fencing were predicted to range between $4.73 and $7.34 million per mile in 1997 dollars. The actual predictions made by the Corps for constructing and maintaining Sandia fencing, in 1997 dollars, were: $691,680 to $768,533 per mile for

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construction, and $839 to $6,715 per mile for maintenance. The 25year life cycle costs for constructing and maintaining Sandia fencing were predicted to range between $9.73 million to $54.23 million per mile in 1997 dollars. Corps of Engineer Study, p. 3 and pp. 21-23. 103 Congressional Budget Office, Congressional Budget Office Cost Estimate: S. 2611 Comprehensive Immigration Reform Act of 2006, as passed by the Senate on May 25, 2006, August 18, 2006, p. 14, at http://www.cbo.gov/ftpdocs/ 75xx/doc7501/s2611spass.pdf. 104 From the DHS FY2006 and FY2007 Congressional Budget Justifications. 105 Government Accountability Office, Secure Border Initiative Fence Construction Costs, GAO-09-244R, January 29, 2009. 106 See Jason Ackleson, ―Fencing in Failure; Effective Border Control is Not Achieved by Building More Fences,‖ Immigration Policy in Focus, Vol. 4, Issue 2, April 2005, available at http://www.ailf.org/ipc/ policy_reports_2005_fencinginfailure.asp. 107 For a series of examples, see Parapundit, Immigration Border Control Archives, available at http://www.parapundit.com/archives/cat_immigration_border_control.html. 108 Testimony of Kevin Stevens, Senior Associate Chief of Customs and Border Protection, in U.S. Congress, House Homeland Security Committee, Economic Security, Infrastructure Protection and Cyber Security Subcommittee, and House Government Reform Committee, Criminal Justice, Drug Policy, and Human Resources Subcommittee, Fencing the Border: Construction Options and Strategic Placement, 109th Cong., 2nd sess, July 20, 2006. Hereafter referred to as: Fencing the Border hearing, July 20, 2006. 109 Rockings refer to the phenomenon of individuals on the Mexican side of the border hurling stones and other items over the fence at USBP agents and vehicles. In the Yuma sector, for example, agents patrolling along the fence are deployed in armored vehicles known as ―war-wagons‖ to protect themselves from rockings and other forms of assault, which are common in that area. Information obtained during a CRS site visit to Yuma sector in August 2005. 110 Fencing the Border hearing, July 20, 2006. 111 Fencing the Border hearing, July 20, 2006. 112 Interview with CBP Congressional Affairs, September 13, 2006. 113 Charles F. Wheatley, Study of Withdrawals and Reservations of Public Domain Lands, at Vol. III, at A-7 (1969); see also Steel v. Smelting Co., 106 U.S. 447, 453 (1882) (observing that the patent, like the deed of an individual, is inoperative if the government never owned the property, or had previously conveyed it, or had reserved it from sale); United States v. Fennell, 381 F. Supp. 2d 1300 (D. N.M. 2005). Cf. United States v. California, 332 U.S. 19, 39 (1947) (finding the federal government‘s paramount rights in the three-mile belt along the California coast were not lost by reason of the conduct of its agents or the acquiescence of such agents in California‘s claim of title). 114 See United States v. Midwest Oil, 236 U.S. 459, 471 (1915) (upholding the President‘s authority to make land withdrawals on the basis of implied acquiescence in such withdrawals by Congress), repealed by 43 U.S.C. §1714. The President‘s constitutional inherent withdrawal power derived from three theories—residual Executive power, stewardship, and constitutional necessity. See Wheatley, Study of Withdrawals, at Vol I, at 134. In Midwest Oil, the Court noted that by 1910, the President had implemented at least 252 executive orders making reservations for useful, though non-statutory purposes. Id. at 471. 115 U.S. CONST. Art. IV, §3, cl.2. 116 The USBP has been prohibited from building permanent camera installations and from paving access roads leading to and along the border. Information obtained during a CRS site-visit to the Tohono O‘odham reservation, August 2005. 117 Randal Archibald, ―Border Fence Must Skirt Objections From Arizona Tribe,‖ New York Times, September 20, 2006. 118 25 U.S.C. §324. 119 United States v. Sioux Nation of Indians, 448 U.S. 371 (1980). 120 Mexican Government Press Release, ―Crecimiento con Calidad: El Presidente Vicente Fox encabezará la cena de gala de la XI Cumbre Anual Hemispheria San Pedro 2005: Rubén Aguilar, Vocero de Presidencia,‖ May 12, 2005. Translation by CRS. 121 Beth Gorham, ―Canada Balks at U.S. Plan for Border Fence,‖ Canadian Press, December 17, 2005, at http://www.canada.com/nationalpost/story.html?id=6c13f3fd-bdfb-4346-99ef-3f01f870c801&k=60592&p=1. 122 Eunice Moscoso, ―Border Fence Would Cost Millions, Not Work Critics Say,‖ Cox News Service, November 9, 2005. 123 Eilene Zimmerman, SFGate.com, Border protections imperil environment—Last wilderness area south of San Diego could be damaged, February 27, 2006, available at http://www.sfgate.com/cgibin/article.cgi?file=/c/a/2006/02/ 27/MNG2GHFBFL1.DTL&type=printable. 124 Id; Defenders of Wildlife, On the Line, pp. 16-19. 125 Chuck Mueller, Dailybulletin.com, Experts say border fence would hurt bighorn sheep (August 14, 2006) available at http://www.dailybulletin.com/news/ci_4177153. Reports also indicate that a constant flow of

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illegal aliens into the native habitat for these animals interferes with their use of certain lands and survival. See Defenders of Wildlife, On the Line, p. 18. 126 Indeed, §129 of S. 2611, passed by the Senate in the 109th Congress, called on the Secretaries of the Interior, Agriculture, Defense, and Commerce, and the Administrator of the EPA to assess the environmental impacts, including the impact on zoning, global climate change, ozone depletion, biodiversity loss, and transboundary pollution, of physical barriers along the southern international land and maritime borders. 127 Defenders of Wildlife, On the Line, p. 35; Anne Minard, National Geographic News, U.S. Immigration Law Could Harm Desert Animals, Critics Say, (March 31, 2006) available at http://news.nationalgeographic.com /news/2006/03/ 0331_060331_desert_fence.html. 128 See generally, Defenders of Wildlife, On the Line. 129 Sierra Club v. Ashcroft, No. 04-CV-272, (S.D. Cal. February 10, 2004). 130 Laws that allow a district court ruling to be appealed directly to the Supreme Court include 13 U.S.C. §141 (illegal use of census data); 15 U.S.C. §29 (Sherman Act violations); 18 U.S.C. §700 (flag desecration violations); 42 U.S.C. §1971 (voting rights violations); and 42 U.S.C. §2000a-5 (civil rights violations). 131 See ―Expansion of Waiver Authority under the REAL ID Act‖ (discussing legal challenges to waiver authority). 132 The FY2008 appropriation for DHS included some funding that was designated as emergency spending in addition to the regularly appropriated funding. For more information about this, please refer to CRS Report RL34004, Homeland Security Department: FY2008 Appropriations, by Jennifer E. Lake et al. 133 From e-mail correspondence with CBP, July 27, 2007. 134 See S.Amdt. 1168 (adopted by unanimous consent and modifying S.Amdt. 1150 to S. 1348); S. 1639, § 103. 135 From CBP Congressional Affairs, September 25, 2006. 136 H.Rept. 109-699, p. 130. 137 For more information about DHS Appropriations, please refer to CRS Report RL33428, Homeland Security Department: FY2007 Appropriations, by Jennifer E. Lake et al. 138 Bills with border fencing language in the 109th Congress included H.R. 418, H.R. 1268, H.R. 4083, H.R. 4312, H.R. 4313, H.R. 4437, H.R. 5067, H.R. 5456, H.R. 5631, H.R. 6061, S. 1916, S. 2049, S. 2061, S. 2117, S. 2368, S. 2377, S. 2454, S.Amdt. 3192, S. 2611, S. 2612, S. 3564, and S.Amdt. 4788.

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CHAPTER SOURCES

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The following chapters have been previously published: Chapter 1 – This is an edited, excerpted and augmented edition of a United States Congressional Research Service publication, Report Order Code RS21899, dated January 26, 2010. Chapter 2 – This is an edited, excerpted and augmented edition of a United States Congressional Research Service publication, Report Order Code RL31738, dated February 1, 2010. Chapter 3 – This is an edited, excerpted and augmented edition of a United States Congressional Research Service publication, Report Order Code R41075, dated February 16, 2010. Chapter 4 – This is an edited, excerpted and augmented edition of a United States Congressional Research Service publication, Report Order Code R40733, dated September 21, 2009. Chapter 5 – This is an edited, excerpted and augmented edition of a United States Congressional Research Service publication, Report Order Code RL34404, dated November 16, 2009. Chapter 6 – This is an edited, excerpted and augmented edition of a United States Congressional Research Service publication, Report Order Code RL31826, dated June 29, 2009. Chapter 7 – This is an edited, excerpted and augmented edition of a United States Congressional Research Service publication, Report Order Code RL33659, dated March 16, 2009.

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INDEX " B

"gangs", 71

9 9/11, 65, 135, 142 9/11 Commission, 135, 142

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A adjustment, 28, 173 affirming, 140 age, 59, 70, 80, 96 \airports, 4, 106, 116, 127, 138 Alaska, 149 alien smuggling, 44, 66 alimentary canal, 117, 119, 130, 139, 140 alternatives, 170 American Recovery and Reinvestment Act, 88 ANOVA, 54 arrest, 112, 124, 126, 137, 138 assault, 52, 53, 78, 86, 87, 89, 96, 98, 103, 193 assessment, ix, 37, 40, 48, 70, 71, 72, 116, 136, 149, 178 assets, 4, 46, 64, 65, 73, 155, 164 attacks, vii, 1, 25, 34, 46, 48, 49, 63, 64 Attorney General, xiii, 59, 61, 74, 75, 80, 85, 87, 90, 95, 96, 98, 99, 100, 102, 143, 144, 145, 188, 189 attractiveness, 23 authority, viii, ix, xii, xiii, 2, 4, 5, 6, 7, 8, 9, 11, 12, 14, 15, 16, 24, 26, 28, 31, 34, 58, 61, 84, 94, 96, 112, 113, 115, 116, 119, 122, 123, 126, 128, 132, 136, 143, 145, 147, 148, 149, 150, 152, 162, 168, 170, 172, 174, 181, 190, 193, 194 availability, 40, 70, 71

background, 4, 67, 74, 80, 85, 94, 100, 103 background information, 67 baggage, 3, 4, 126, 139 barriers, vii, xii, xiii, 64, 143, 144, 145, 146, 147, 148, 149, 150, 151, 157, 158, 159, 160, 162, 163, 164, 165, 169, 170, 171, 172, 173, 174, 180, 189, 191, 192, 194 barriers to entry, 145 BEA, 191 behavior, x, 24, 59, 77, 84 black market, 43, 45, 101 border control, 166 border crossing, 3, 9, 23, 30, 62, 63, 79, 127 Border Patrol, xii, 2, 64, 66, 75, 111, 137, 143, 144, 160, 166, 175, 189, 190, 192 border search, vii, xi, xii, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 119, 121, 122, 123, 124, 126, 127, 128, 129, 132, 133, 134, 136, 138, 139, 140, 141 border security, vii, viii, xi, 1, 2, 3, 4, 5, 38, 40, 49, 58, 61, 64, 66, 68, 90, 105, 106, 111, 116, 119, 128, 135, 136, 137, 161, 166, 169, 172 breaches, 162, 165, 166, 167 Bureau of Alcohol, Tobacco, Firearms, and Explosives, xii, 74, 100, 104, 122 Bureau of Customs and Border Protection, 160 Bureau of Land Management, 181, 190 buyer, 12, 60, 85, 92, 103 by-products, 21

C caliber, x, 59, 77, 78, 82, 88, 102

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198

Index

Canada, 3, 22, 62, 67, 79, 83, 109, 126, 135, 159, 169, 193 carrier, 12, 14, 19, 20, 21, 22, 28, 29, 31, 32 cartel, 40, 71, 72, 78, 98 case law, 106, 107, 108, 132, 137 certificate, 16, 20 certification, 14, 32 Chad, v, 1, 5, 37, 118, 143 channels, 59, 64, 79, 84, 87, 89, 98 child labor, 149 citizenship, 5, 81, 125 City, 13, 28, 34, 60, 88 civil liberties, 115 civil rights, 116, 136, 194 Clean Air Act, 10, 179, 181, 183, 186, 192 Coast Guard, vii, viii, 1, 2, 3, 4, 5, 6, 58, 65, 66 cocaine, 40, 41, 44, 70, 71, 78, 107 Colombia, 41, 65, 70, 71, 75, 129 common law, 111, 134 communication, 61, 65, 111 communication systems, 65 community, ix, 37, 46, 56, 59, 61, 67, 84, 102, 169, 170, 179 compensation, 158, 169, 171 competition, viii, 7, 8, 13, 23, 27, 28, 29 compliance, viii, 7, 9, 58, 59, 84, 85, 87, 112, 113, 151, 152, 181, 185 components, 66, 68, 82, 146, 159, 161, 188 computing, 107 concentrates, 58 concrete, 49, 163, 171, 191 conflict, ix, 37, 39, 56, 168 congestion, 21, 22, 23, 26 Congressional Budget Office, 166, 193 consent, 83, 112, 113, 130, 169, 173, 194 conservation, 180, 182, 185 conspiracy, 60, 85, 91, 92, 102 Constitution, xi, 105, 106, 115, 124, 148, 158, 168, 190 construction, xiii, 143, 144, 145, 147, 148, 149, 150, 151, 152, 153, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 172, 173, 174, 182, 189, 190, 191, 192 control, ix, 21, 22, 31, 37, 39, 45, 49, 50, 51, 57, 63, 64, 65, 75, 78, 82, 83, 100, 115, 126, 135, 144, 146, 147, 151, 158, 159, 161, 179, 181, 193 costs, ix, xiii, 8, 12, 25, 29, 31, 35, 45, 62, 144, 159, 162, 163, 164, 165, 166, 167, 168, 173, 189, 192 counsel, 60, 85 counterterrorism, 65 country of origin, 21 Court of Appeals, 10, 11, 32, 106

crime, x, xi, 38, 39, 41, 43, 44, 47, 48, 49, 52, 53, 54, 55, 56, 59, 66, 70, 71, 73, 77, 78, 79, 80, 81, 83, 84, 89, 91, 93, 94, 95, 96, 99, 100, 102, 103, 112, 114, 116, 171 criminal activity, 39, 122, 127, 128, 130 criminal acts, 3 criminals, x, 2, 44, 47, 77, 84 cross-border investment, 28 culture, 41, 151 currency, 19, 110, 134 customers, 13, 27, 34, 45, 66, 92 Customs and Border Protection, vii, xi, 1, 2, 6, 17, 33, 57, 65, 66, 79, 105, 106, 111, 116, 136, 144, 192, 193 Customs Service, vii, 1, 2, 3, 65, 79

D danger, 129, 182 data collection, 89 database, 16, 19, 62, 65, 96, 116, 136 deaths, 38, 48, 56, 72, 73, 171 decisions, 148, 170, 189 defecation, 139 defendants, 61, 88, 91, 92, 102, 190 defense, 4, 5, 82, 99, 190 deficiency, 32 definition, 46, 51, 59, 72, 84, 86, 98, 101, 103 delivery, ix, 8, 12, 13, 14, 20, 27, 28, 29, 66, 138 Department of Agriculture, vii, 1, 2, 5, 19, 183 Department of Commerce, 82, 191 Department of Defense, 159, 161, 174 Department of Energy, 99 Department of Health and Human Services, 5, 70 Department of Homeland Security, vii, xi, xiii, 1, 2, 5, 6, 70, 72, 73, 75, 79, 105, 111, 119, 137, 143, 144, 145, 175, 189, 191, 192 Department of Justice, vii, x, 1, 5, 32, 43, 57, 70, 71, 72, 74, 77, 78, 79, 98, 100, 101, 102, 103, 146, 175, 189, 192 Department of the Interior, 176, 182 destruction, 2, 4, 72, 86, 178, 182 detection, 4, 62, 93, 100, 135, 146, 165 detention, 3, 107, 113, 117, 127, 129, 130, 131, 139 directives, xi, 105, 111 disposition, 59, 84, 103 dissenting opinion, 110 distribution, 17, 39, 40, 41, 42, 44, 49, 53, 58, 70, 71, 80, 87, 119 District of Columbia, 75, 149, 150 division, viii, 1, 128 domestic policy, 51 domestic violence, 81

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Index drug control policies, 50, 51 drug smuggling, xiii, 30, 38, 44, 48, 63, 131, 143, 144, 145 drug trafficking, ix, x, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 62, 64, 66, 69, 70, 71, 73, 77, 78, 80, 91, 93, 98, 102, 104 drug use, 40, 51, 70 drugs, ix, 2, 4, 37, 38, 39, 40, 41, 42, 43, 44, 45, 47, 49, 50, 51, 53, 57, 61, 65, 70, 79, 81, 102, 106, 130, 131, 132 duties, ix, 2, 7, 11, 19, 20, 123, 124, 128, 144, 151, 185

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E early warning, 95 economic growth, 17, 23 economic integration, 73 economic welfare, 31 economics, 12, 27, 418 El Salvador, 75, 101 electronic communications, 110 e-mail, 191, 194 employees, viii, 2, 3, 4, 111 endangered species, 152, 178 environment, 3, 19, 22, 25, 45, 61, 151, 152, 158, 164, 170, 178, 191, 193 environmental effects, 178 environmental impact, xiii, 10, 144, 157, 158, 169, 170, 171, 178, 194 environmental protection, 159, 170 Environmental Protection Act, 192 EPA, 32, 178, 194 examinations, 9, 129 exclusion, 137, 138 Executive Order, 100 exercise, 123, 137, 150 expertise, 112 explosives, 83, 98 exporter, 12, 20 exports, 3, 17, 22, 82, 83, 93, 102

F fear, 22, 27, 34, 35, 44, 46, 71, 139, 141 federal courts, xi, 105, 106, 107, 118, 123, 128, 129, 132, 133 federal criminal law, 57 federal funds, 61 federal law, 2, 70, 81, 85, 86, 94, 95, 98, 112, 114, 149, 150

199

feet, 131, 134, 158, 159, 162, 163, 168, 173, 191 felon, 95, 102 fencing, xii, xiii, 135, 143, 144, 145, 147, 150, 151, 153, 154, 155, 157, 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 171, 172, 173, 174, 190, 191, 192, 194 Fifth Amendment, 168, 169, 171 Financial Crimes Enforcement Network, 61 financial institutions, 61, 62 financial resources, 25 financial system, 61 firearms, x, xi, xii, 4, 20, 58, 59, 60, 61, 68, 74, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 122, 136 firms, ix, 8, 12, 14, 18, 19, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 34, 35 First Amendment, 108, 109, 110, 119, 134, 185 fish, 180, 183, 185, 188 Fish and Wildlife Service, 148, 157, 170, 178, 180, 182 flexibility, xii, 34, 121 flight, xii, 67, 109, 121, 140 foreign language, 114 foreign nationals, 5 foreign policy, 82, 100 forests, 188 Fourth Amendment, v, xi, xii, 105, 106, 108, 109, 110, 116, 117, 121, 122, 123, 124, 125, 126, 129, 130, 131, 132, 133, 134, 136, 137, 138, 139, 140, 141 freedom, viii, 2, 4, 138, 146 fuel, 10, 117, 132 funding, 11, 31, 65, 88, 97, 100, 101, 104, 159, 160, 161, 164, 166, 172, 174, 185, 191, 194 funds, ix, xii, 8, 11, 61, 62, 103, 122, 136, 148, 160

G gangs, 44, 47, 49, 71 gasoline, 107, 114 GDP, 191, 192 GDP deflator, 191, 192 General Accounting Office, 6, 32, 34 General Agreement on Tariffs and Trade, 17 global climate change, 194 goals, 2, 50, 51, 65, 83 GPS, 10, 29 grants, 62, 82, 185 groups, 11, 40, 41, 44, 47, 49, 50, 67, 70, 71, 98, 170, 185 growth, 17, 27, 43 Guatemala, 75

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Index

guidance, 160 guidelines, 97, 181 guilty, 92, 102, 137 Gulf of Mexico, 172

H habitat, 157, 158, 169, 178, 194 harm, 135, 139, 141, 158, 169 hazardous materials, 9, 10, 19, 20, 21, 34 hazardous substances, 181 hazardous wastes, 21 heroin, 40, 41, 44, 70, 71, 78, 106 high school, 14 highways, 34 hiring, 163, 166 homeland security, 3, 4, 66, 75, 166 Homeland Security Act, 5, 189 homicide, 60, 84, 89 Honduras, 75 hostile acts, 5 House, xi, 5, 35, 70, 71, 72, 73, 74, 75, 76, 78, 88, 90, 95, 100, 101, 103, 104, 160, 161, 172, 174, 189, 191, 193 human rights, 100 hunting, 80, 81, 180

indication, 38, 89, 117, 129, 139, 140, 156, 165 indicators, 46, 49, 51 industry, x, 14, 15, 29, 34, 59, 61, 77, 84, 88, 103, 185 inferences, 117, 139 information sharing, 62, 65 infrastructure, 3, 13, 17, 23, 64, 66, 135, 144, 146, 156, 159, 160, 161, 164, 170, 173, 174, 191 INS, 2, 3, 137, 138, 145, 146, 147, 148, 159, 160, 162 insight, x, 38, 41, 52, 56, 192 inspections, vii, viii, 1, 2, 3, 16, 19, 20, 23, 26, 51, 63, 85, 96, 122, 131, 160 inspectors, 3, 9, 11, 19, 32 institutions, 23, 30, 31, 46, 81, 182, 185 insurance, ix, 8, 9, 25, 28, 29, 34 intelligence, 3, 4, 50, 57, 58, 61, 65, 66, 67, 68, 75, 135, 169 Intelligence Reform and Terrorism Prevention Act, 135 Internal Revenue Service, 58, 65 international law, 137 international trade, 25 interview, 125, 126, 191 intimidation, 46, 48, 72 invasion of privacy, 117, 128 investment, 27, 166 Iraq, viii, 7, 10

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I identification, 60, 66, 85, 137, 138 identity, 126, 138 illegal aliens, 4, 128, 146, 158, 194 illegal drug use, 40 images, 12, 72 immigrants, 2, 3, 81, 111, 165 immigration, xii, xiii, 2, 3, 10, 30, 63, 102, 111, 112, 113, 122, 123, 124, 126, 137, 138, 139, 144, 146, 147, 158, 159, 160, 166, 167, 169, 170, 171, 173, 193 Immigration and Nationality Act, xii, 122, 123, 124, 147 immobilization, 82 impact assessment, 116, 136 Impact Assessment, 157 implementation, viii, 7, 8, 10, 19, 22, 24, 25, 26, 27, 28, 29, 30, 31, 32, 34, 35, 50, 57, 83, 161 import restrictions, 40 imports, 3, 13, 17 imprisonment, 60, 81, 85, 87, 91, 92, 93, 96, 97, 102, 103, 182 income tax, 173 Indians, 193

J Jackson Lee, Sheila, 90 jobs, 9, 29 jurisdiction, 3, 50, 72, 82, 85, 99, 112, 114, 148 justice, 65, 70, 72, 81, 103 justification, 106, 107, 110, 113, 115, 134 juvenile justice, 103

K kidnapping, 41, 44, 53, 72

L labor, 8, 25, 26, 28, 29, 30, 35, 99, 100, 159, 166 land, vii, xii, xiii, 1, 4, 13, 17, 35, 57, 63, 124, 126, 135, 137, 143, 144, 147, 148, 151, 152, 157, 158, 159, 161, 164, 165, 166, 168, 171, 174, 178, 181, 182, 185, 193, 194 land acquisition, 148, 157, 159, 166

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Index language, 11, 25, 29, 88, 103, 104, 106, 122, 149, 151, 162, 170, 173, 189, 191, 194 laptop, vii, xi, 105, 106, 107, 108, 109, 114, 115, 117, 119, 133, 134, 141 Latin America, 75, 104 law enforcement, viii, x, xii, 2, 3, 4, 5, 10, 39, 44, 45, 46, 47, 48, 49, 53, 58, 60, 61, 62, 66, 67, 68, 74, 75, 77, 78, 80, 81, 83, 85, 88, 91, 94, 95, 96, 98, 100, 102, 103, 112, 113, 116, 122, 135, 136, 169 laws, xi, 3, 45, 57, 72, 74, 78, 79, 80, 86, 87, 91, 93, 94, 95, 99, 101, 112, 113, 114, 116, 124, 126, 128, 136, 149, 150, 159, 170, 181, 189, 190 leadership, 67, 68 legal issues, 165, 170 legislation, 103, 115, 119, 135, 147, 174, 178, 189 legislative proposals, 95, 169 licenses, 9, 21, 81, 83, 100 life cycle, 166, 192 likelihood, 24, 26, 27, 46, 49, 68, 124, 137 limitation, 104, 151 line, viii, 2, 5, 13, 27, 66, 79, 159 local government, 151

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M machinery, 18, 161 magazines, x, 58, 77, 87 maintenance, 14, 159, 162, 163, 166, 167, 172, 179, 182, 192 management, 28, 152, 170, 172, 178, 180, 181, 185 mandates, 106, 125, 178, 185 manpower, viii, 2, 5, 63, 145, 146, 155, 156, 161, 165, 167 manslaughter, 52, 53 manufacturer, x, 77, 84, 96, 97 manufacturing, 21, 58, 59, 80, 83 marijuana, 40, 44, 70, 71, 78, 108, 117, 141 market, ix, 8, 13, 14, 18, 25, 26, 27, 28, 29, 34, 40, 41, 43, 45, 72, 78, 87, 101 market share, ix, 8, 34, 78 marketplace, ix, 37, 45 markets, xi, 13, 25, 39, 44, 45, 59, 60, 70, 72, 78, 84, 86, 93 McCain, Senator John, 103 measurement, 49, 50, 51, 52 measures, 4, 10, 45, 51, 62, 63, 87, 95, 154, 155, 173, 178, 179, 185 media, 38, 51, 64, 73, 111, 136, 141 migrants, xiii, 79, 143, 144, 145, 170, 171 migration, xiii, 122, 143, 144, 153, 154, 155, 156, 157, 165, 170, 171 military, x, 4, 45, 46, 58, 67, 70, 72, 77, 78, 79, 82, 86, 87, 89, 90, 97, 98, 152, 159, 161, 163, 180

201

missions, vii, 2, 50, 66 mobile phone, 111 money, 3, 28, 38, 41, 44, 51, 57, 58, 61, 63, 64, 65, 68, 69, 70, 75, 79 money laundering, 58, 61, 64, 68, 69, 70, 75 moratorium, 16, 33 motion, 9, 108, 109, 135, 150, 190 movement, viii, xi, 2, 3, 4, 19, 20, 21, 22, 23, 29, 38, 44, 59, 78, 84, 139, 146, 170

N NAFTA, v, viii, 7, 8, 9, 10, 11, 13, 16, 17, 19, 21, 22, 24, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 189 narcotic, 75, 78, 102, 129 narcotics, 3, 19, 23, 64, 88, 102, 111, 117, 130, 138 nation, vii, viii, x, 1, 2, 3, 4, 5, 31, 38, 41, 56, 67, 115, 122, 126, 128, 137, 144, 163, 188 National Ambient Air Quality Standards, 179 national emergency, 82 National Park Service, 163, 176, 182, 188, 192 national policy, 182 National Public Radio, 73 national security, 3, 82, 112, 113, 115, 141, 170 NCA, 181, 184, 186 network, 3, 67, 135 Nicaragua, 75 noise, 181 North America, v, viii, 7, 8, 32, 33, 34, 35 North American Free Trade Agreement, v, 7, 32, 34, 35

O OAS, 83, 100 Obama Administration, ix, 7, 11, 31 objectives, 50, 51, 65 obligation, 97, 160 observations, 135 offensiveness, 130 Office of Management and Budget, 73 Omnibus Appropriations Act,, 88, 103 operator, 21 order, 1, iii, xiii, 3, 10, 20, 43, 44, 45, 51, 56, 59, 61, 63, 65, 66, 68, 80, 81, 82, 92, 94, 107, 110, 111, 122, 123, 125, 128, 130, 132, 133, 141, 143, 144, 147, 148, 149, 151, 152, 163, 164, 167, 170, 190 Organization of American States, 83 osmosis, 49 oversight, 50, 59, 74, 84, 100 ownership, 21, 27, 28, 67 ozone, 194

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202

Index

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P Pacific, 144, 145, 147, 172 pain, 24, 129 Panama, 75 partnership, 61 patents, 168 penalties, xi, 12, 19, 32, 59, 78, 80, 82, 83, 91, 95, 178 permit, 4, 28, 79, 81, 133, 149, 178, 181, 182, 185 perpetration, 59, 80 Philippines, 109, 110, 134 planning, 32, 68, 159, 161, 164 plants, 157, 180 POEs, 17, 19, 20, 23, 39 police, 24, 32, 44, 45, 52, 78, 85, 103, 117, 138, 139 policy initiative, 152 policy makers, ix, 37, 38, 39, 43, 45, 46, 47, 48, 49, 50, 53, 63, 73 policy responses, 50 pollution, 30, 179, 181, 194 ports, vii, viii, 1, 2, 3, 4, 8, 17, 28, 39, 50, 63, 64, 65, 111, 116, 127, 136, 138, 144 posture, xiii, 144, 171 power, 65, 111, 115, 116, 123, 126, 134, 137, 141, 190, 193 precedent, 107, 110, 111, 123, 134, 135, 141 present value, 162, 163, 192 President Clinton, 83 pressure, 28, 35, 40, 64 prices, ix, 37, 45, 71, 98 privacy, 107, 113, 114, 115, 116, 122, 125, 126, 128, 129, 131, 132, 136 private sector, 34, 66 probability, 116, 127 probe, 139, 140 producers, ix, 37, 40, 45 production, 45, 49, 58, 80, 185 profit, 14, 44, 79, 99, 100 profits, ix, 27, 30, 37, 45 program, viii, ix, x, 2, 4, 8, 10, 11, 12, 14, 31, 38, 52, 53, 56, 60, 65, 66, 73, 88, 94, 135, 152, 159, 161, 164, 172, 178, 179, 180, 191 proliferation, 98, 171 property crimes, 53, 73 property rights, 191 proposition, 32, 107, 110, 134, 139 public safety, 79 public welfare, 158 Puerto Rico, 3, 189

Q quality of life, 151 questioning, 109, 126, 131

R range, 3, 11, 29, 92, 115, 162, 163, 166, 188, 192 rape, 52, 53 reason, 30, 33, 34, 51, 79, 107, 116, 124, 137, 138, 139, 141, 163, 165, 166, 190, 193 reasoning, 110, 127, 129, 132, 133, 134 recognition, 116, 191 region, x, 19, 22, 25, 26, 34, 39, 49, 58, 59, 61, 64, 65, 77, 87, 91, 146, 158 Registry, 99 regulation, x, 9, 21, 27, 77, 80, 84, 91, 93, 100, 102, 137 regulations, viii, 2, 3, 10, 33, 82, 83, 97, 116, 136, 147, 149, 178, 181, 182, 188, 189 regulatory requirements, 28 relationship, 33, 39, 45, 72 relevance, 51, 114 Requirements, 178, 179, 180, 183, 186 resale, 71, 92, 99, 100 resistance, 30 resources, xiii, 4, 50, 62, 63, 65, 66, 72, 90, 94, 112, 143, 144, 146, 151, 153, 155, 156, 163, 165, 166, 171, 180, 182, 185, 190 retail, x, 43, 44, 77, 84, 94 retaliation, 44 retention, 113, 159 risk, 12, 14, 21, 22, 25, 26, 32, 79, 139, 169 rural areas, 44, 167, 171

S safety, viii, ix, 4, 7, 8, 9, 10, 11, 12, 14, 15, 16, 20, 24, 25, 30, 31, 32, 133, 147, 180 sales, 59, 75, 80, 92, 94, 95, 96, 97, 99, 100, 104 savings, 31 school, 96 scores, 15 search, xi, xii, 59, 84, 102, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 119, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 136, 137, 138, 139, 140, 141 searches, xi, xii, 105, 106, 107, 108, 109, 111, 112, 113, 114, 115, 116, 117, 119, 121, 122, 123, 124, 125, 126, 127, 128, 129, 131, 132, 133, 134, 135, 136, 137, 139, 140, 141

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Index searching, 106, 107, 110, 111, 112, 115, 131 Secretary of Defense, 180 Secretary of Homeland Security, xiii, 63, 90, 115, 143, 145, 147, 149, 150, 151, 171, 172, 189 Secretary of the Treasury, 61 Securities Exchange Act, 35 security, vii, viii, 1, 2, 4, 5, 6, 12, 14, 23, 30, 34, 38, 46, 47, 48, 62, 63, 66, 67, 111, 122, 133, 135, 136, 148, 161, 166, 180, 189 seizure, xii, 70, 102, 106, 111, 116, 121, 122, 125, 126, 134, 137, 138 Senate, xi, 11, 33, 34, 73, 74, 75, 78, 83, 88, 90, 95, 98, 100, 101, 103, 160, 161, 172, 173, 174, 191, 193, 194 sensors, 67, 146, 150, 151, 159, 160, 172, 173 September 11, vii, 1, 4, 23, 34, 63 service provider, 34 sex, 110, 134 sexual abuse, 119 shares, 38, 58, 67 sharing, 61, 83, 111 Sherman Act, 194 smuggling, ix, 3, 5, 37, 39, 44, 45, 47, 48, 49, 58, 60, 61, 62, 64, 65, 68, 71, 79, 85, 91, 93, 102, 106, 111, 117, 123, 129, 130, 140, 158, 164, 165, 171, 189 Smuggling, 62, 68, 92 solid waste, 181 sovereignty, 126 space, 5, 163, 168 species, 157, 169, 178 standards, xi, 105, 113, 118, 129, 135, 140, 179, 181, 185 state laws, 81, 86 statistics, 14, 51, 52, 152, 157, 190 statutes, xi, xii, 75, 78, 80, 91, 92, 94, 102, 122, 123, 190 steel, 144, 145, 162, 163 stimulus, 88 stock, 86, 87 stomach, 131 storage, vii, xii, 39, 106, 107, 109, 115, 117, 122, 128, 133 supervisor, 112, 116, 136 suppliers, ix, 37, 40 supply, 42, 44, 53, 64 suppression, xii, 121 Supreme Court, xi, xii, 10, 32, 105, 106, 107, 109, 110, 111, 116, 118, 121, 122, 123, 124, 125, 127, 129, 132, 133, 134, 135, 137, 140, 141, 148, 150, 170, 194 surplus, 144, 162 surrogates, x, 58, 77, 87

203

surveillance, 67, 125, 135, 150 suspects, 44, 112, 114, 146

T targets, 58, 98, 99 tariff, 31 taxation, 10 TBI, 72 technical assistance, 114 telephone, 164 temperature, 13 tension, 59, 63, 84 terminals, vii, 1, 14, 109 territory, 22, 27, 45, 47, 73, 145 terrorism, 4, 30, 46, 66, 72, 83, 111, 136 The Homeland Security Act, vii, 1, 188 theft, 34, 52, 103 thoughts, 110, 111, 114, 134 threat, ix, 30, 37, 39, 40, 45, 58, 70, 71, 72, 78, 82 threats, viii, 2, 3, 4, 50, 57, 58, 66, 67 threshold, 129 timber, 180, 188 time frame, 53 time periods, 55, 115 Title I, 188, 190 Title II, 190 tolls, 19, 26 tracking, 11, 63 tracks, 24, 67, 72 trade, 2, 9, 17, 21, 22, 25, 27, 30, 31, 33, 34, 39, 41, 42, 44, 45, 47, 48, 63, 99, 100 traffic, 13, 17, 21, 22, 23, 75, 91, 146, 158, 163, 170 training, 65, 83, 135, 159 transactions, 80, 82, 92, 94, 102, 103 translation, 112, 114 transport, 10, 20, 28, 33, 40, 41, 42, 74, 91, 97, 101, 102, 103, 179, 181 transportation, vii, viii, 1, 2, 4, 34, 35, 39, 41, 42, 93, 102, 167 Transportation Security Administration, vii, 1, 4, 66 transshipment, 39, 41 treaties, 100 trial, 71, 108, 109 tribal lands, 168

U U.S. Department of the Treasury, 99 uncertainty, 26 unions, 8, 29 unreasonable searches, 122

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204

Index

urban areas, 146, 157, 165, 167, 171

V

wages, 25, 28, 34 war, 45, 70, 72, 102, 193 War on Terror, 135 warrants, 59, 84, 126 water supplies, 181 waterways, vii, 1, 4 weapons, 2, 3, 4, 38, 41, 44, 46, 50, 58, 61, 64, 65, 66, 67, 68, 79, 80, 82, 86, 87, 89, 96, 98, 101, 103, 128, 144 weapons of mass destruction, 2, 3, 4, 144 web, 50, 72, 73 White House, 33, 35, 75, 169 wholesale, 42, 44, 61 wilderness, 158, 179, 188, 191, 193 wildlife, 158, 170, 180, 182, 183, 185, 188 withdrawal, 158, 168, 193 wrongdoing, xi, 105, 106, 107, 110, 116, 122, 123, 125, 126, 129, 130, 137

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vegetables, 11, 13, 18 vehicles, x, xii, 3, 11, 18, 20, 25, 29, 62, 77, 121, 123, 127, 128, 132, 133, 140, 143, 144, 145, 146, 157, 158, 162, 163, 182, 193 vein, 115, 132 Venezuela, 71 vessels, 4, 67, 123 victims, x, 38, 44, 47, 49, 56 videotape, 108 Vietnam, 162 violence, vii, ix, x, 37, 38, 39, 40, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 55, 56, 57, 58, 59, 62, 63, 64, 66, 68, 70, 71, 72, 73, 78, 80, 91, 93, 99, 102, 104 violent crime, x, 38, 43, 49, 51, 52, 53, 54, 55, 56, 73, 77, 79, 84, 93, 98

W

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