Can the Department of Homeland Security be Reformed? Two Border Legislators Take On the Behemoth.

Welcome to issue #2 in our inaugural week of The Border Chronicle! Thank you for subscribing to our weekly newsletter on the US-Mexico border. Leave a comment and let us know how we’re doing. And please pass this on to anyone who cares about locally reported border journalism.

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We’re devoting this first week to examining how the 9/11 attacks spurred the creation of a massive border security industry and the formation of the Department of Homeland Security. In the “ahem, cough cough” many years that I have been reporting on the US-Mexico border region, I’ve probably written hundreds of stories about problems at the Department of Homeland Security from failures and dysfunction in its internal affairs division to Customs and Border Protection collecting information on US citizens without a warrant. Yet, year after year, DHS only gets bigger and more dysfunctional. It makes you wonder what it will take to finally institute major reforms. And will Congress ever get there? (I know, I know) In today’s story, US Rep.Veronica Escobar and US Rep. Raúl Grijalva describe the tough road ahead for reform.

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Can the Department of Homeland Security be Reformed?

Two Border Legislators Take On the Behemoth.

It was mid-July 2020, and as in many cities in America, racial justice protests filled the streets of Portland, Oregon. But these protests were different: armed agents in camouflage and body armor roved Portland’s streets in unmarked vans, abducting protesters and firing pepper spray, rubber bullets, and tear gas.

“Federal forces shot an unarmed protester in the face,” tweeted Oregon senator Jeff Merkley. “These shadowy forces have been escalating, not preventing, violence.”

Many Americans were surprised to learn that these agents were part of Customs and Border Protection and Immigration and Customs Enforcement, two agencies under the Department of Homeland Security.

In an interview with NPR, Juan Chavez, a civil rights attorney with the Oregon Justice Resource Center, called the agents’ tactics “stop and frisk meets Guantanamo Bay.”

This might have been a shock to much of the United States, but it was nothing new for residents of the border. From checkpoints to unfettered surveillance and harassment at ports of entry, border residents—when it comes to their civil liberties—live a much different reality from that of most Americans.

During the Trump era, the forcible separation of families at the border and attacks on peaceful demonstrators highlighted many of the endemic problems at DHS, including its lack of accountability and its susceptibility to politicization. Two border legislators have repeatedly called for DHS to be either reformed or dismantled altogether: Democratic representative Raúl Grijalva, of Arizona, who represents a wide swath of the border in his state, and Democratic representative Veronica Escobar of Texas, who represents El Paso. Both recently filed legislation to clean up the problematic agency.

With a Democrat in the White House and a Democratic majority in Congress, it would seem like the perfect moment to get their reform bills passed. The hyper-partisan divide in Congress, however, is jeopardizing any chance to do so, they said, especially in the Senate, where, thanks to the filibuster, Democrats need at least 10 Republican votes—a supermajority—to pass legislation.

“We have such slim majorities that even if we can get something across the finish line on the House side, the Senate is a whole other problem because of the filibuster,” Escobar said. “The Senate is paralyzed.”

Since its creation in 2002, when Congress folded 22 agencies into one enormous cabinet-level agency, both Democrats and Republicans have criticized the massive DHS bureaucracy, citing concerns about everything from lack of accountability to bloated budgets and civil liberties violations. Early on, the nonpartisan Government Accountability Office warned that DHS was “vulnerable to waste, fraud, abuse, or mismanagement.”

Every year since, the GAO has flagged DHS for many “high risk” issues, including poor management and low employee morale. Despite its ongoing problems, DHS has doubled in size to more than 240,000 employees, and it now oversees the nation’s largest federal law enforcement workforce, many of whom Trump deployed as part of his “national police force” to Portland, Kansas City, Chicago, and other cities. This was done, he said, to protect courthouses and other federal property during racial justice protests, but as the governor of Oregon tweeted at the time, they instead provoked “confrontation for political purposes.”

In the borderlands, residents and community leaders have called for reform for years, given that Border Patrol agents there have killed or seriously injured more than 130 people in the last decade while ICE regularly targets and deports residents. Escobar said fixing DHS is long overdue. “I put a lot of this on Congress,” she said. “We should have long ago acknowledged some significant failures and reenvisioned it altogether.”

Escobar is relatively new to Congress, having arrived in Washington in 2019. Not long after taking office, she filed HR 2203, the Homeland Security Improvement Act, which would create an independent ombudsman to investigate citizen complaints—thousands of which are ignored every year by DHS—and an oversight committee with residents from the northern and southern borders who would advise on CBP and ICE policies. It would also create a Border Community Liaison Office, require a report on the impacts of technology and surveillance on border communities, and institute training in community policing and use of force, as well as several other reforms.

Escobar inherited the bill from her predecessor, Beto O’Rourke, who gave up the El Paso congressional seat to run for the US Senate against Republican Ted Cruz. (O’Rourke lost the race by less than three percentage points.)

Ironically, Escobar said, she’d helped craft the Homeland Security reform bill while serving in her previous post as El Paso County judge. “It’s a bill that came from the grassroots community—from the Border Network for Human Rights,” she said of the El Paso–based nonprofit. “And as a local elected official, I helped with the envisioning of it. And so it’s interesting that I later went on to become a member of Congress who passed the bill.”

The bill passed the House in September 2019 with 28 cosponsors—all Democrats—but died in the Republican-controlled Senate.

Still, it was an advancement from 2017, when O’Rourke first filed the bill, which never made it out of the House committee even with a Republican cosponsor, Steve Pearce, who represented New Mexico’s border district at the time. In May, Escobar refiled the oversight bill, now called HR 3557. The latest version bans family separation at the border unless the child is endangered by a parent or legal guardian, which would be assessed by an independent child welfare expert, and it would require the GAO to study the possibility of creating an independent immigration court to deal with the backlog of more than 1.4 million immigration cases pending nationwide. Because Congress is at a standstill, Escobar is lobbying DHS’s new secretary to make many of the changes from within the agency, such as implementing training requirements in line with police departments and increasing staffing at ports of entry, which have long been neglected.

Shortly after Alejandro Mayorkas was nominated to become DHS’s new secretary, Escobar said, she met with him and discussed her reform bill. “He agreed with me that a lot of it could be done administratively,” she said. “And I actually have hope that he will implement a lot of it over time.”

But so far, Mayorkas has been stymied by an agency whose leadership and management were gutted during the previous administration. Changing the DHS is a herculean task given the pandemic, disasters fueled by climate change, domestic terrorism, and the legacy of Trump’s “heinous policies” at the border, as Escobar called them. Then there’s the massive border security industry, which funds political campaigns and enriches countless elected officials, including Mayorkas, who reported profits from major border contractors in the two years before he was appointed in April.

All this is a barrier to reform. Grijalva, who arrived in Congress in 2003, the same year DHS officially opened its doors, said legislators react to each crisis related to DHS, be it family separation or Title 42 barring asylum seekers from the country, but they never tackle the source of the problem: DHS itself. That’s because both Democrats and Republicans are afraid to be perceived as soft on immigration and border security. “The toxic political rhetoric around immigration and the border in general and this fear that some of my colleagues have about being seen as not supporting CBP or ICE, and so there’s this reluctance,” Grijalva said. “They’re afraid to bring up the fact that Homeland Security is not being run on any real mission. And the even greater danger, which is the politicization of the agency, which Trump did.”

Eventually, Grijalva said, DHS will become so unmanageable that Congress will be forced to deal with it. “This is an agency that was cobbled together in response to 9/11 and has matured without the same congressional oversight and administrative accountability that other law enforcement agencies in the federal government have,” he said. “This is not about picking on Border Patrol agents or ICE. It’s about following the same standards as other federal law enforcement agencies.”

For too long, Grijalva said, agencies such as CBP and ICE have enjoyed lax oversight because they’re perceived as dealing only with issues at the border. “It has a lot to do with political representation and race,” he said. “And anybody who wants to deny that is wrong.”

In February he filed a bill, HR 994, that would prohibit DHS and state and local governments from contracting with private prison corporations for immigration detention, and it would mandate alternatives for immigrant family detention by using community-based case managers instead of ankle monitors. The bill is in a House committee with 37 cosponsors, all of them Democrats. Grijalva has filed various versions of the “Justice Is Not for Sale Act” since 2015. The first time, Senator Bernie Sanders carried the companion bill in the U.S. Senate. Still, the reform bill has never been voted out of a House committee.

Grijalva said that after 9/11, the federal government sold border residents on the idea that the border security buildup in their communities would at least bring economic benefits and greater security. But the huge growth in enforcement, barriers, and checkpoints didn’t foster those changes, he said. “We still have some of the highest poverty census tracts in the nation,” he said. “It’s not been this boon or zero-sum security that was promised by Republicans and Democrats. Instead, the community sees it as an intrusion and not worth the sacrifice we’ve made in privacy, our rights, and in economic development.”

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For years the only economic growth the border region has seen, he said, is in detention facilities and gun sales. “Along the 150-mile distance from the border, we have the largest number of gun shows and gun shops per capita in America.”

The federal government urgently needs to start investing in border communities and providing better infrastructure, economic, and educational opportunities, he said. “I’m a product of the borderlands, and you know it’s a unique piece of our country in terms of people, language, and the mix of diversity—plus the best food in the world,” he said. “And we’re losing it because of federal policy.”

The Arizona congressman, like his counterpart in Texas, believes it will be difficult to get much done in Congress as long as there’s partisan gridlock. Passage of comprehensive immigration reform is unlikely, Grijalva said. The best tactic, he said, is to lobby the administration on key issues such as protecting immigrants with Temporary Protected Status and the Deferred Action for Childhood Arrivals program, known as DACA. “The right wing is going to try and tie immigration around the Democrats’ necks, and for some that fear is pervasive,” he said of his Democratic colleagues. “But like it or not, this administration has to lead.”

Over the years, Grijalva has watched DHS grow exponentially. During the Obama years, he recalled, Janet Napolitano, who was then DHS secretary, working to convince Obama that getting tougher on the border would persuade Republicans in Congress to support comprehensive immigration reform. “That never happened,” he said. “But the policies stayed in place, and then Trump turbocharged them.”

For his Republican colleagues, he said, there is no appeasing them when it comes to the border and immigration. “They come to the border for political reasons. To stand by the wall, do their sound-bite, put it on social media, and tell everyone that you have to shut down the border,” he said. “But people who live on the border don’t want this theater security. They want real security,” he said. “And that requires being smart about it and more targeted and moving toward a much more humanitarian approach to immigration.”

President Biden will have to prioritize the region, he said, because piecemeal attention won’t do it. “The administration says it’s not following Trump’s policies, but what are Biden’s policies? It’s still unclear.”

Ultimately, it will come down to border communities pressuring their elected officials to lobby the administration for much-needed reform, he said. “People need to ask their representatives along the border, What are you going to do about it? It’s up to us to not be content with what we get, and to keep pushing President Biden to do more.”

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