U.S. Border Patrol lacks an agency-wide mechanism to verify that staff have correctly cared for individuals in short-term custody, the Government Accountability Office (GAO) has found.
In October 2015, U.S. Customs and Border Protection (CBP) issued its National Standards on Transport, Escort, Detention and Search (TEDS). The standards govern how CBP—including the Office of Field Operations (OFO) and Border Patrol—should transport, escort, detain, or search individuals in short-term custody. They also govern how CBP should handle personal property and provide care for at-risk individuals.
GAO’s review confirmed that CBP uses various mechanisms, at multiple levels of the agency, to monitor the care of individuals in short-term custody and help ensure that CBP personnel are adhering to TEDS. For example, staff at OFO ports of entry and Border Patrol stations—where holding facilities are located—are responsible for performing routine custodial actions. This includes providing meals and conducting periodic welfare checks of those in its custody. These staff also are to use electronic systems to record and manage data of their monitoring activities for individuals in custody. Officials at the OFO field office, Border Patrol sector, and headquarters levels also periodically conduct inspections of facilities and are responsible for monitoring custodial action data.
Ports of entry and stations can have local procedures and issue policy reminders to help ensure that CBP personnel adhere to TEDS. For example, GAO discovered that two ports of entry have standard operating procedures that include information like what time locations provide meals, how an officer should intake individuals, how officers should process a case, and caring for unaccompanied children in custody for extended periods. Officials GAO spoke with also noted that some supervisors and managers send out reminders to officers and agents to help ensure that they are adhering to policy. For example, an official from one Border Patrol station noted that management reinforced TEDS via an email reminder to all staff and supervisors on reporting requirements and procedures for responding to any allegation of sexual abuse or assault that occurs in custody. The same official stated that management would send out musters if there were any corrective actions identified during the Self-Inspection Program. An official from one port of entry told GAO that the port sent an email about a change in policy regarding the search of transgender individuals. Specifically when searching an individual, an officer should be the same gender as the gender the individual identifies as.
In response to the significant increase in the number of individuals in custody with contagious disease, illness or injury, CBP issued a memo in 2019 to clarify and update TEDS provisions related to the care and custody of certain at-risk populations. This update requires staff to conduct welfare checks every 15 minutes for individuals who are sick or injured. It also calls for CBP to develop a method to ensure compliance with those requirements. However, GAO found that Border Patrol does not have a mechanism to ensure compliance. Border Patrol’s short-term custody policy states that agents should physically check high-risk individuals every 15 minutes, but the policy does not specify how frequently agents should conduct welfare checks for individuals in its custody not designated as at-risk, as required by the 2019 memo.
Border Patrol officials stated that they believe the agency is meeting the intent of the requirements through activities that occur at the field-level. They told GAO that the agency’s electronic data system allows agents to mark when someone is at-risk, and alerts agents when they need to carry out a 15-minute welfare check for an at-risk individual. This alert, called a status check, turns yellow when it is near due—which is between 11 and 15 minutes—and red when it is overdue—which is over 15 minutes. Officials stated that agents and supervisors constantly monitor the data system and the status checks screen to ensure that agents conduct actions such as welfare checks in a timely manner.
While GAO agreed that the electronic alerts are helpful for reminding agents to conduct a welfare check, Border Patrol officials acknowledged that there is no agency-wide mechanism to verify that agents have conducted and recorded the required 15-minute welfare checks.
In recent years, CBP has experienced a significant increase in the number of individuals encountered at or apprehended between U.S. ports of entry along the southwest border. This has resulted in overcrowding and difficult humanitarian conditions in its facilities. According to CBP data, the agency encountered or apprehended about 1.73 million individuals in fiscal year 2021 along the southwest border. During GAO’s review, Border Patrol officials acknowledged that there could be gaps in the times they conduct welfare checks on individuals due to overcrowding.
The Department of Homeland Security (DHS) concurred with GAO’s recommendation to implement a mechanism to monitor the agency’s compliance with welfare check requirements for certain at-risk individuals in custody. DHS noted steps already taken, such as database updates and guidance emailed in June which reminded personnel of the monitoring requirements for at-risk individuals. In addition, Border Patrol will email quarterly reminders and generate a quarterly report to monitor the agency’s compliance with welfare check requirements.
GAO’s findings follow other oversight concerns. In August 2021, the Office of Inspector General (OIG) reported on weaknesses in CBP policies, procedures, and oversight — along with training gaps — that left agents and officers challenged in spotting detainees who could be having medical emergencies and ensuring they receive needed care. At the time, OIG said CBP could not demonstrate that personnel consistently conducted regular welfare checks of individuals in custody. Out of a sample of 98, OIG found nine “at-risk” individuals — those with a known or reported contagious disease, illness, and/or injury — who did not receive welfare checks every 15 minutes as required. This was attributed to “inadequate guidance” on welfare checks. Responding to OIG’s findings, CBP said it would assess policies and make changes as needed by February 28, 2022.
A February 2022 report by OIG praised general improvements made by CBP and Border Patrol regarding individuals in custody, and made no new recommendations. But in August this year, OIG reported that it was particularly concerned that a lack of effective communication with individuals during medical screenings at El Paso facilities could result in an unnoticed and untreated health condition worsening and potentially becoming a health emergency.
