GAO: Border Patrol Misclassified More Than 15,000 Criminal Aliens in FY2013-15

Brittany M. Hughes | January 13, 2017
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A new report published by the Government Accountability Office shows border agents misclassified more than 15,000 criminal aliens at the border between FY2013 and FY2015, instead processing them as non-criminal aliens, first-time offenders and sometimes even family units.

According to the GAO, border agents misclassified 11 percent of the illegal aliens they apprehended at the border, including 15,309 previously identified criminal aliens, between FY2013 and FY2015. Of those who were wrongly categorized, 7,929 aliens who had previously been apprehended and classified as a criminal alien due to one or more criminal conviction on their record were later caught and processed as merely a “persistent apprehension,” one of four non-criminal alien classifications.

Another 151 criminal aliens were later misidentified as a “first time apprehension,” and another 3,206 criminal aliens were processed as a “second or third apprehension.” Both of these are non-criminal classifications and rarely carry the threat of prosecution.

Additionally, 414 aliens previously identified as suspected smugglers were later processed as first-time apprehensions. Another 210 confirmed smugglers were later caught and labeled as first-time offenders, while another 1,528 known smugglers were later processed as persistent border-crossers.

The GAO described the case of one illegal alien who was caught at the border 54 times and classified a total of five different ways.

For example, one alien apprehended 54 times in the Rio Grande Valley sector between October 2012 and May 2015 was classified as a First Time Apprehension 6 times, a Second or Third Time Apprehension 4 times, a Persistent Apprehension 22 times, a Suspected Smuggler 15 times and a Targeted Smuggler 7 times.

“Further, our analysis showed that criminal aliens not classified in accordance with agency guidance were less likely to face prosecution and more likely to be voluntarily returned to their home country than criminal aliens overall,” GAO notes.

Not all of these misclassified criminals were wrongly categorized by mistake, the GAO noted, explaining that sometimes "agents received oral direction from headquarters to reclassify criminal aliens who cannot be given a consequence of federal prosecution."

But whether by accident or intent, misidentifying these criminal aliens and allowing them to voluntarily go home heightens the probability that they will attempt to cross the border again in the near future, GAO noted. According to the report, border patrol noted the vast majority of these previously identified criminals had an average of only 100 to 150 days between apprehensions.  

The oversight agency noted that "without correctly classifying alien apprehensions according to its guidance, Border Patrol does not have reasonable assurance that aliens receive the most appropriate consequences and that Border Patrol is most effectively using CDS to address and reduce the threat from smuggling and other criminal activity."

In addition to inconsistently classifying many dangerous criminal aliens, the GAO explained that Border Patrol regularly misreports the recidivism rate for illegals who are caught at the border, returned and apprehended again during the same fiscal year. While Border Patrol claims that only about 14 percent of illegal alien border crossers try to reenter the United States after being caught, the GAO estimates the average recidivism rate is actually closer to about one-third -- and can even reach 45 percent in some border sectors. 

Further, our analysis measuring recidivism using both an alien’s apprehension history over multiple years and excluding aliens who may remain in the United States showed an even higher recidivism rate than Border Patrol’s reported recidivism rate or either method alone. Specifically, our analysis using a three year apprehension history—from fiscal year 2013 through 2015—and excluding aliens who may remain in the United States showed a recidivism rate of 29 percent for fiscal year 2015, compared to a 14 percent recidivism rate reported by Border Patrol.

The GAO noted this discrepancy is likely because Border Patrol calculates its recidivism rate by tallying the number of repeat offenders against its total apprehension numbers, which include tens of thousands of aliens who are processed and allowed into the United States (and would therefore not be at risk of attempting to unlawfully cross the border again during the same fiscal year). Border Patrol also doesn’t account for repeat border crossers who attempt to illegal enter the United States over multiple fiscal years, the GAO added.

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