Senior Border Patrol officials told Homeland Security Today “there is no such [catch and release] policy” which was issued by the Department of Homeland Security (DHS) requiring Border Patrol agents to release illegal aliens apprehended at the border.
Claims that such a policy exists were broached Feb. 4 by Brandon Judd, president of the American Federation of Government Employees National Border Patrol Council, during testimony at a hearing by the House Committee on the Judiciary Immigration and Border Security Subcommittee.
In response to alleged claims of retaliation against Judd for his testimony, House Judiciary Committee Chairman Bob Goodlatte (R-Va.) wrote DHS Secretary Jeh Johnson on April 18 to respond to the reports DHS retaliated against Judd “for his shocking testimony about the administration’s policy of releasing recent border crossers with no intention of ever removing them.”
Goodlatte stated that, “On February 4, 2016, Brandon Judd, President of the American Federation of Government Employees National Border Patrol Council, testified before the Immigration and Border Security Subcommittee that DHS has established a policy requiring Border Patrol agents to release unlawful immigrants apprehended at the border and not place them in removal proceedings. This de facto policy contradicts the Obama administration’s so-called enforcement priorities issued on November 20, 2014, which state that unlawful immigrants who came to the United States after January 1, 2014 and recent border crossers are priorities for removal and are to be placed in removal proceedings.”
“Within days of Judd’s testimony,” Goodlatte’s office said,” the House Judiciary Committee was “informed that a manager within the Border Patrol submitted a complaint for alleged misconductagainst [Judd] and other leaders of the National Border Patrol Council.”
In his letter to Johnson, Goodlatte said the timing of the complaint “raises the specter of retaliation against Mr. Judd and the other executive committee members,” and calls on the DHS secretary to ensure no DHS employee or contractor will be targeted for voicing legitimate concerns about compliance with unwritten departmental policies that contradict written policies.”
However, a variety of senior Border Patrol officials – some working the Southwest border – emphatically told Homeland Security Today no such policy exists, written or unwritten, and that aliens apprehended illegally crossing the border into the US are not being released, contrary to some claims to the contrary.
One official said, “Look, if there was a policy of this nature, it would be documented somewhere, somehow, and it would have been leaked. We take our mission seriously … and we would have come forward to expose it, even in the face of possible retaliation against us for doing so. It just isn’t happening … and that’s the truth of the matter.”
“In response to your question regarding the ‘de facto policy,’ I can tell you that the US Border Patrol continues to enforce immigration laws consistent with the department’s enforcement priorities, which are focused on border security, national security and public safety,” a senior Customs and Border Protection [CBP] official told Homeland Security Today Wednesday afternoon. “As Secretary Johnson has said many times, our border is not open to illegal migration and those who do so will be sent back. The Border Patrol’s resources are most effectively focused on the border – prioritizing the apprehension and removal of individuals attempting to unlawfully enter the United States. Our removal numbers reflect that. Border Patrol agents are issuing Notices to Appear, consistent with law, regulation and the department’s enforcement priorities.”
In his testimony, Judd stated, “Late in the year of 2013 and throughout all of 2014, an unprecedented number of unaccompanied minors entered our country illegally through the Rio Grande Valley Sector of operations,” and that, “As this surge became too much to handle, the Border Patrol and the Enforcement and Removal Office began releasing nearly everyone we arrested.”
Judd stated, “All individuals that were released during this period of time were given an official document that ordered them to appear before an immigration judge at some future date. These orders are called Notices to Appear (NTA). The only problem, however, is that these official orders are usually ignored; so much so that Border Patrol Agents have dubbed them Notices to Disappear. The latest data that I have seen shows that approximately 40 percent of the individuals being issued NTAs do not show up.”
Continuing, Judd told the subcommittee, “The willful failure to show up for court appearances by persons that were arrested and released by the Border Patrol has become an extreme embarrassment for the Department of Homeland Security. It has been so embarrassing that DHS and the US Attorney’s office has come up with a new policy. Simply put, the policy makes mandatory the release, without an NTA, of any person arrested by the Border Patrol for being in the country illegally, as long as they do not have a previous felony arrest conviction and as long as they claim to have been continuously in the United States since January of 2014. The operative word in this policy is ‘claim.’”
Judd said, “The policy does not require the person to prove they have been here which is the same burden placed on them during deportation proceedings. Instead, it simply requires them to claim to have been here since January of 2014. Not only do we release these individuals that by law are subject to removal proceedings, we do it without any means of tracking their whereabouts. Agents believe this exploitable policy was set inplace because DHS was embarrassed at the sheer number of those who choose not to follow the law by showing up for their court appearances. In essence, we pull these persons out of the shadows and into the light just to release them right back to those same shadows from whence they came.”
Goodlatte said Judd’s “stunning testimony marked a clear contradiction between the current immigration enforcement policies and those contained in your memorandum of November 20, 2014, titled, Policies for the Apprehension, Detention and Removal of Undocumented Immigrants. Under that memorandum, all aliens apprehended at the border after January 1, 2014, are priorities for removal. Mr. Judd, who represents more than 16,000 Border Patrol Agents, further testified that the current DHS policy was established because of the embarrassing fact that large numbers of aliens apprehended at the border failed to appear at their removal hearings and simply absconded.”
On March 1, 2016, CBP Commissioner Gil Kerlikowske testified before the House Appropriations Committee that Border Patrol agents “should not be releasing anyone,” and disputed Judd’s testimony, stating CPB is not engaging in the “catch and release” policies of the past. Kerlikowske questioned Judd’s credibility, stating the National Border Patrol Council “is not the most knowledgeable organization about what’s actually going on.”
In response, Goodlatte told DHS Secretary Johnson, “I have been informed that one or more managers within the US Border Patrol submitted a complaint for alleged misconduct to the Joint Intake Center against Mr. Judd and other executive committee members of the National Border Patrol Council, and that the Office of Professional Responsibility is the most likely DHS component that will be tasked with this investigation. Such an inquiry, launched within days of Mr. Judd’s testimony before the Subcommittee on Immigration and Border Security, raises the specter of retaliation against Mr. Judd and the other executive committee members.”
Goodlatte told Johnson, “I fully expect that you will personally ensure that no DHS employee or contractor will be targeted for reprisal or any other form of adverse employment action on the basis of voicing their legitimate concerns regarding compliance with unwritten departmental policies that contradict your written policies. Additionally, please give me your assurance that any allegation of employee misconduct against Mr. Judd or any other DHS employee or contractor will be investigated fairly and impartially by the appropriate DHS component, without any improper influence by any person within DHS.”