Recent videos and photographs circulated on social media and by news outlets show Border Patrol agents opening Texas Border fence gates to take custody of migrants making landfall into the United States. One video revealed a Border Patrol agent physically cutting concertina wire installed by the state to accept the surrender of a group of migrants. A CBP source says the actions are required by law and recently enhanced by policy enacted after the 2021 Haitian Border Crisis in Del Rio.
According to a source within U.S. Customs and Border Protection, a policy measure implemented after members of the Border Patrol Mounted Horse Unit were falsely accused of whipping Haitian Migrants in Del Rio further limited the Border Patrol’s ability to arrest migrants in certain dangerous environments. The memo limited the agent’s ability to conduct arrests in waterways or on border fences. Breitbart Texas received and reviewed a copy of the 2021 memo authored by Tony L. Barker, acting chief of the Law Enforcement Directorate for the Border Patrol.
The policy memorandum forbids Border Patrol agents from forcing migrants to return to Mexico once on United States soil. The memorandum reads, “BPA’s will not force or guide individuals back into waterways or unsafe environments.”
The directive further highlights the legal requirement for migrants to be granted due process through existing immigration law, emphasizing, “BPA’s will not forcibly remove anyone from the United States at the border. Migrants must be inspected and processed for appropriate dispositions. Repatriations will follow appropriate processing of the relevant dispositions.”
The source says the agents are not allowed to act on their personal convictions when performing their duties and must abide by law and policy or face discipline — including termination or prosecution for deprivation of civil rights. “Migrants are entitled to due process regardless of anyone’s feelings, the 14th amendment clearly grants persons due process under our laws,” the source explained.
The consequences the agents face if they do not follow the policy, could not be better understood than by examining the incident involving the mounted patrol agents during the 2021 Haitian migrant crisis in Del Rio. Despite a lengthy internal investigation finding they did not whip the migrants, administrative punishment was nonetheless applied to the group for denying the migrants the ability to move onto U.S. soil. One supervisory Border Patrol agent that was not present as the incident unfolded was nonetheless disciplined by the agency for “failure to supervise,” according to the source.
The source says agents must arrest the migrants and are responsible for their safety once they realize they have entered the United States — regardless of any barriers they stand behind. As reported by Breitbart Texas, one agent cut concertina wire put in place by the State of Texas to accomplish this task.
The source says the agent had no choice. “We have good relations with our state partners and our ideas of a secure border generally align with each other. However, we cannot fail to take the migrants into custody without facing job loss or prosecution for a civil rights violation.”
The CBP official says Texas authorities probably understand the legal peril as well. “They have not taken any forcible means to return migrants to Mexico and instead are using the barriers to discourage entries,” the source stated. “They more than likely realize they could also face prosecution at the hands of the DOJ’s Civil Rights Division if they started taking migrants to ports of entry and forcibly removing them — their hands are tied too.”
The source says the penalties for violating a person’s civil rights are severe. “If one of our agents forces migrants to cross the river back into Mexico and the migrant loses their life, the consequences are disastrous. If we leave them behind a state-erected barrier knowing they are on U.S. soil and they die of heat exhaustion, the same applies,” the source emphasized.
According to the Department of Justice, Title 18 Section 242 makes it a crime for a person acting under color of any law to willfully deprive a person of a right or privilege protected by the Constitution or laws of the United States.
Acts under “color of law” include acts not only done by federal, state, or local officials within their lawful authority, but also acts done beyond the bounds of that official’s lawful authority if the acts are done while the official is purporting to or pretending to act in the performance of his/her official duties. Persons acting under color of law within the meaning of this statute include police officers, prison guards, and other law enforcement officials, as well as judges, care providers in public health facilities, and others who are acting as public officials. The crime doesn’t need to be motivated by animus toward the race, color, religion, sex, handicap, familial status, or national origin of the victim.
The offense is punishable by a range of imprisonment up to a life term or even the death penalty — depending upon the circumstances of the crime — and the resulting injury, if any.
Randy Clark is a 32-year veteran of the United States Border Patrol. Prior to his retirement, he served as the Division Chief for Law Enforcement Operations, directing operations for nine Border Patrol Stations within the Del Rio, Texas, Sector. Follow him on Twitter @RandyClarkBBTX.