V. Chapter Five: The Border Patrol Apprehends and Voluntarily Returns Resendez to Mexico on June 1, 1999

During the evening of June 1, 1999, Resendez was apprehended by two Border Patrol agents assigned to the Santa Teresa Border Patrol Station. The two agents who apprehended him were assigned to perform linewatch duties during the evening shift. This assignment involved patrolling by four-wheel drive vehicle the remote, desert-like areas between ports of entry along the border. The agents attempted to detect and apprehend illegal aliens crossing the border (usually by foot) into the United States from Mexico.

At approximately 9:00 p.m. on June 1, a seismic sensor was activated near an area known as Mount Cristo Rey, about seven miles east of the Santa Teresa Border Patrol Station. The two Border Patrol agents responded to the area and began to search for illegal crossers, but they did not spot anyone at first. Other Border Patrol agents arrived to assist them in the search. The agents observed a person running through the area, but that person eluded them and ran into the brush. At that point, the Border Patrol agents called a Border Patrol helicopter equipped with a powerful searchlight for assistance.

With its searchlight, the helicopter located the illegal crosser in an area near railroad tracks on the side of a ravine. The two Border Patrol agents who had initially responded to the sensor alert drove to the helicopter’s location, where they observed Resendez crouched in a fetal position on the ground trying to hide in the brush. One of the agents climbed down the side of the ravine, apprehended Resendez, and walked him back to the agents’ vehicle.

Resendez identified himself as De Uribe Rafael Hernandez-Hernandez, a name he had not used before, and he provided a birth date of August 16, 1966.⁴¹

One agent asked Resendez several questions, including whether he had ever been arrested or deported before. Resendez responded “no” to these questions. The agent told the OIG he remembered seeing the blue color of a tattoo near Resendez’s wrist, but he thought nothing of it because tattoos are typical of poor persons from the interior of Mexico. The agent described Resendez as very quiet and respectful and characterized Resendez’s overall demeanor as unobtrusive. The agent said that the only unusual aspect of this apprehension was that Resendez appeared to be traveling alone, while most aliens travel in groups of three or more. The other agent agreed that, other than the fact that Resendez was traveling alone, there did not seem to be anything unusual about him.

Normally Border Patrol agents in Santa Teresa enroll in IDENT the aliens they apprehend. However, on this night they did not because a Border Patrol employee was assigned to the Santa Teresa station and was available for IDENT processing. Also, a Detention Enforcement Officer (DEO) was available to transport apprehended aliens back to the station. At the time that the two agents apprehended Resendez, additional sensors went off in the area, and nine more aliens were quickly apprehended. The DEO transported Resendez and the nine other aliens back to the Border Patrol station to be processed. According to one agent, 20 aliens were caught within approximately one hour of Resendez’s apprehension.⁴²

At the Santa Teresa Station, an agent who had been working for the Border Patrol for about six months was the station officer on duty that evening. His duties included office security, monitoring detainees temporarily held in the station’s holding cells, answering telephones, assigning equipment, and assisting in the processing of apprehended aliens. This agent told the OIG that he had not received IDENT training, either at the Border Patrol Academy or at the Santa Teresa station. He said that he learned about IDENT from a colleague when they processed aliens into the system.

The agent at the station enrolled Resendez in IDENT in the late evening hours (Mountain Time) of June 1, 1999, which IDENT identified as June 2, 1999, Eastern time.⁴³ This agent did not specifically remember Resendez and did not recognize any of the photographs of Resendez when interviewed by the OIG. He acknowledged, however, that he used his own password when processing aliens in IDENT, and he did not dispute that he had processed Resendez on June 1.

When the agent entered Resendez’s fingerprints in IDENT, the system presented three different hits (FINS transactions), each with an associated photograph, as possible matches for Resendez. The photographs presented were from the third (January 8, 1998), fifth (April 21, 1998), and seventh (November 3, 1998) apprehensions of Resendez that had been previously entered in IDENT, which we described in Chapter III. Two of the FINS revealed two apprehensions. Thus, in total, IDENT revealed five prior apprehensions of Resendez.⁴⁴ Depicted below is information in IDENT at the time of this apprehension.

According to IDENT records, the agent denied each of the possible matches presented by IDENT. When questioned by the OIG, the agent did not specifically recall his enrolling Resendez in IDENT, but said that he was surprised that IDENT showed that he had denied each of the possible matches offered. He said that typically if an alien had less than apprehensions (the prosecution threshold in Santa Teresa) and there were no unusual circumstances regarding the apprehension, he would not even look at the photographs from the possible matches. Rather, he would allow IDENT to auto verify the match based on the fingerprint scores. He said that this was his general practice because his supervisors encouraged agents to return to the field as soon as possible and not spend excessive time in the office.

When the OIG showed the agent photographs and fingerprints from IDENT for the June 1 apprehension of Resendez and the photographs and fingerprints from the three possible matches presented by IDENT, he stated that if he did not presently know that they were in fact the same person he probably still would not verify the match. He said that he does not verify a match based on photographs unless he is absolutely sure. He said if the photographs appear close, but he is not absolutely sure of the match, he would call a supervisor and ask him to make the call. He also said that in the absence of a clear photographic match he relied more on his own comparison of the fingerprints. He asserted that he did not think Resendez’s

#8 6/2/99 Encounter

Agent Verified No for Each Candidate

COMMENTS: None

HIT STATUS: 3 Hits June 1, 1999, fingerprints appeared to match the fingerprints from the previous apprehensions.

Because the official policy in Santa Teresa was not to seek prosecution of aliens for entry without inspection based on fewer than apprehensions, absent unusual circumstances, even if the agent had matched all the previous enrollments of Resendez contained in IDENT, the total (five) would not have reached the threshold set in Santa Teresa for prosecution.

In this case, the agent never learned that there was a warrant for Resendez’s arrest in connection with several murders. As a result, Resendez was again voluntarily returned to Mexico a short time after his apprehension.

VI. Chapter Six: The Search for and Surrender of Resendez

On June 8, 1999, the FBI established the Resendez task force in the FBI’s Command Center in Houston. This chapter summarizes some of the steps taken by the task force; how Resendez eventually came to be enrolled into the IDENT lookout database on June 22, 1999; the INS’s response when it learned in June 1999 that Resendez had been in custody of the Border Patrol; and Resendez’s eventual surrender on July 13, 1999, to law enforcement authorities.

A. The FBI Multi-Agency Task Force

The FBI profiler, Mark Young, spoke with the Houston FBI’s Fugitive Task Force during the week of May 17, 1999, about obtaining a warrant for Resendez, because Young believed that the murders of Dr. Benton and the Sirnics were linked. On May 27, 1999, the murder of Christopher Maier in Lexington, Kentucky, also was matched to the Sirnic and Benton cases. On May 27, 1999, the FBI’s Fugitive Task Force obtained a federal UFAP warrant for Resendez and entered it into NCIC the next day.

On June 8, 1999, the Houston Police Department convened a meeting with various state and local law enforcement agencies to discuss the formation of a coordinated effort to locate and apprehend Resendez. No one from the INS was at this meeting. Later that same day, the FBI established a command post at the Houston FBI office for the multi-agency task force.

FBI agents working on the task force told us that they believed that a lookout on Resendez was already in place in an INS system in case the INS apprehended him. The FBI agents believed that the Texas Rangers and West University Place police had arranged for a lookout to be placed in the INS internal system for Resendez.

On June 9, 1999, Perez, the original FBI case agent on the Resendez investigation, prepared an FBI Form FD-315, “Federal Bureau of Investigation INS Lookout Notice,” on Resendez. According to Perez, this was standard procedure and done as a matter of course when a suspect is an alien. Perez provided pertinent information about Resendez on the form, including his physical description, NCIC number, biographical data, and his known aliases. Perez’s supervisor mailed the lookout form to the INS in Washington via regular mail. The form requested that a lookout be placed in the INS’s NAILS system, a text-based database primarily used by inspectors at ports of entry to check in-coming travelers. NAILS is also used by INS officers to make entries into TECS. NAILS is not connected to IDENT, and there is no equivalent FBI lookout form to request that a lookout for an alien be placed in IDENT.

The FBI lookout form that Perez completed on June 9 was last revised in 1988 and contained the address for INS Headquarters rather than the INS Inspections Lookout Unit, the unit that enters NAILS lookouts. The head of the Inspections Lookout Unit told the OIG that he could not determine when the INS eventually received the lookout request, but he could determine that his unit placed a lookout for Resendez in NAILS on June 28, 1999.

Another FBI special agent on the Resendez task force told the OIG that sometime during the week of June 7, 1999, he contacted INS Senior Special Agent Thomas Cason, who worked on the Houston INS District Office’s Organized Crime Drug Enforcement Task Force (OCDETF). INS investigators assigned to OCDETF, including Cason, typically work with other law enforcement agencies on drug-related cases. Cason normally worked from the FBI’s Houston office. Because there were no INS employees officially assigned to the FBI’s Resendez task force, the FBI special agent on the task force asked Cason to check whether there were any INS files in addition to Resendez’s A-file that would be relevant to the investigation of Resendez.

Cason said that he obtained the A-file for Resendez’s sister and queried several databases for information on Resendez , such as NCIC, the Texas Criminal Information Center, the Texas Department of Public Safety database, and a Harris County database. Cason did not review IDENT or mention it to the FBI.

B. A Lookout Notice is Sent to Border Patrol Sectors

On June 9, 1999, Cason and an FBI special agent on the task force prepared a “lookout” notice and package to be sent to Border Patrol sectors. This notice included a request that the Border Patrol be on the lookout for Resendez. It also included a timeline of Resendez’s life; a photograph of him; and a memorandum containing a description of the crime scenes at West University Place and Weimar, a description of a burglary in Kountze, Texas (for which Resendez was a suspect), and a description of the murder and rape in Lexington, Kentucky. On the evening of June 9, 1999, the lookout notice was faxed to Border Patrol Headquarters “for dissemination to all Border Patrol Stations and Ports of Entry within your sector jurisdiction.” The cover page contained “Special Handling Instructions” requesting that recipients “please advise your border patrol employees working checkpoints/ports of entry on the Mexican border to be on the lookout for Rafael Resendez-Ramirez, who is the subject of a serial homicide investigation in Texas.” ⁴⁵

According to the FBI special agent who helped Cason prepare and send the lookout notice, they sent it to at least 18 or 20 Border Patrol sectors all across the Texas Border. With some, they sent the notice to the sector and requested that it be sent to Border Patrol checkpoints within the sectors; with others, they sent the notice directly to the checkpoints.

C. Resendez is Enrolled in IDENT’s Lookout Database

1. Initiative by Border Patrol Agent Estevis

On June 10, 1999, David Estevis, the lead intelligence officer in the Del Rio Border Patrol Sector, received the lookout notice sent by Cason. Estevis told the OIG that after reading it, he wanted to ensure that Resendez would be detained if he was apprehended by the Border Patrol. He said he was concerned for the safety of Border Patrol agents in the Del Rio Sector who might come in contact with Resendez. He forwarded the documents by facsimile to all offices in the Del Rio Border Patrol Sector.

Although Estevis had not been trained in the use of IDENT and had not previously used it, he was aware that IDENT’s lookout function could alert a Border Patrol agent to detain a dangerous alien. Therefore, on June 14, 1999, Estevis contacted the FBI’s command post in Houston and was referred to Cason. Estevis said he made several calls to Cason and left messages for him, but Cason never returned his calls. Meanwhile, Estevis asked the Del Rio computer/data processing specialists how to enter an alien into the IDENT lookout database. They were unsure of the process. Estevis and [REDACTED], a Del Rio Intelligence Officer who worked with Estevis, made calls to the INS Help Desk and WIN and eventually were referred to the INS’s Biometric Support Center (BSC) in Washington, D.C. They learned that they needed to send a set of Resendez’s ten fingerprints to the BSC for inclusion in the IDENT lookout database.

Estevis began trying to locate Resendez’s INS A-file because he knew it would contain a complete set of ten-prints for Resendez. Estevis learned that Cason had the A-file. On June 17, 1999, Estevis telephoned the FBI command center and was again told that Cason was not available. Estevis then contacted an FBI agent on the task force and asked him whether Resendez’s fingerprints had been entered in IDENT. The FBI agent told Estevis that he did not know anything about IDENT and did not know whether the fingerprints had been entered in IDENT. At Estevis’s request, the FBI agent sent a fingerprint card with a set of Resendez’s ten-prints to Estevis via overnight mail.

On Friday, June 18, 1999, Estevis received Resendez’s fingerprint card and spoke to the BSC to confirm what needed to be done to have a lookout for Resendez placed in IDENT. Estevis asked [REDACTED] to send Resendez’s prints to the BSC. On June 18, [REDACTED] sent a letter to the BSC formally requesting that Resendez’s enclosed fingerprints be entered in IDENT. [REDACTED]’s letter stated that Resendez was a “wanted felon in our area,” was “likely to be apprehended by the Border Patrol,” and that enrolling him in IDENT’s lookout database was “important for the safety of our agents.”

On June 21, 1999, the FBI issued a press release announcing that Resendez had been placed on the FBI’s list of “Ten Most Wanted Fugitives.” The FBI press release stated that he was wanted for questioning in a series of homicide, rape, and burglary cases. The release stated that Resendez used freight railroad transportation to travel around the United States, and the crimes he allegedly committed occurred near railroad tracks. The press release listed Resendez’s numerous aliases and offered a reward of $50,000 for any information directly leading to his arrest.

On June 22, 1999, the BSC added Resendez to the IDENT lookout database.

According to Estevis, around this time the Houston FBI was asking the Border Patrol for all relevant information on Resendez. In an effort to assist the FBI, Estevis obtained from the BSC information in IDENT about previous apprehensions of Resendez so that he could give the FBI as many photographs of Resendez as possible. On June 23, when reviewing the information in IDENT, Estevis discovered that it contained the eight prior apprehensions of Resendez, including the one on June 1, 1999, in Santa Teresa. Estevis telephoned the Patrol Agent in Charge of the Santa Teresa Border Patrol Station and provided him the information he had learned from IDENT. Later that day, Estevis spoke with INS Headquarters about this information. He also provided what he had learned from IDENT to the FBI task force.

On June 24, a Border Patrol agent who was a member of the El Paso Sector’s Computer Development Unit used the IDENT alert function to update Resendez’s entries in IDENT’s recidivist database. Subsequently, Border Patrol agents in the Del Rio and Laredo Sectors also entered alerts for Resendez in the recidivist database.

2. Initiative by United States Marshals Service Inspector Sorukas

William J. Sorukas, Jr., is a Senior Inspector assigned in the United States Marshals Service (USMS) Investigative Services Division, Domestic Investigations Unit, in Washington, D.C. Sorukas is responsible for overseeing and managing major fugitive investigations for the USMS Western Region. He told the OIG he first heard of the Resendez case in June 1999, a few days before the FBI placed Resendez on its list of Ten Most Wanted Fugitives.

At approximately the same time that Estevis and [REDACTED] requested that Resendez be enrolled in IDENT, Sorukas also requested that a lookout be placed for Resendez in IDENT. Sorukas said he read FBI chronologies of Resendez’s arrests and realized that Resendez had been crossing the border since the 1970s. Sorukas believed that Resendez was an appropriate individual to enter into the IDENT lookout database because there was a reasonable chance that he could be apprehended while attempting to cross illegally into the United States. Sorukas said he had learned about IDENT in 1996 when he was stationed in San Diego working on several fugitive task forces. Since then, Sorukas has asked INS approximately five times to place lookouts for fugitive aliens in the IDENT lookout database. He decided to request this for Resendez as well.

On June 14 or 15, 1999, Sorukas contacted the USMS office in Sacramento, California, and asked it to obtain copies of Resendez’s fingerprints that were taken when he was arrested in 1995 in San Bernardino, California. Sorukas received the fingerprints on June 21, 1999. The following day he provided the necessary information to the BSC for a lookout to be entered in IDENT. On June 23, Sorukas received a facsimile from the BSC indicating the lookout on Resendez had been entered in the IDENT system.

D. The INS’s Investigation into the Resendez Matter

On June 25, 1999, the INS began an internal investigation examining how the INS had apprehended and voluntarily returned Resendez to Mexico eight times, including on June 1, 1999. INS Headquarters began assembling a timeline of the INS’s actions in the case. However, on June 30, 1999, Attorney General Janet Reno and INS Commissioner Doris Meissner asked the OIG to review the INS’s handling of the Resendez matter and the operation of IDENT. As a result, the INS halted its inquiry and provided the information it had collected to the OIG.⁴⁶

E. Resendez Surrenders

On July 13, 1999, Resendez crossed the border from Ciudad Juarez, Mexico, and surrendered to U.S. and Texas law enforcement officials at the Ysleta port of entry near El Paso, Texas. Resendez was booked, enrolled in IDENT, and taken before a state magistrate. He was then flown to Houston to await trial.

Resendez has been charged with eight murders (three of which occurred after he was released on June 1, 1999):

· August 29, 1997, Lexington, Kentucky (murder of Christopher Maier);

· October 1, 1998, Hughes Springs, Texas (murder of Leafie Mason);

· December 16, 1998, West University Place, Texas (murder of Claudia Benton);

· April 30, 1999, Weimar, Texas (murders of Norman and Karen Sirnic);

· June 3, 1999, Fayette County, Texas (murder of Josephine Konvicka);

· June 15, 1999, Gorham, Illinois (murders of George Morber and his daughter, Carolyn Fredrick).

Resendez is also believed to have committed another murder in June 1999, although he has not been charged with it:

· June 3, 1999, Houston, Texas (murder of Noemi Dominguez).

VII. Chapter Seven: OIG Analysis of the Border Patrol’s Apprehensions and Voluntary Returns of Resendez in 1998 and 1999

This chapter analyzes the actions of Border Patrol agents who apprehended Resendez eight times in 1998 and 1999, then voluntarily returned him to Mexico each time. Because there was no information in IDENT alerting these agents to Resendez’s criminal history, record of prior deportations, or his outstanding warrants, these Border Patrol agents returned Resendez to Mexico in accord with standard Border Patrol practices. While several of the agents made mistakes in how they processed Resendez in IDENT, these mistakes did not affect their decision to return him to Mexico.

A. The Voluntary Returns of Resendez Were in Accord with Standard Border Patrol Practices and Procedures

When IDENT was created, the INS entered information into the lookout database on a day-forward basis. This meant that information about most aliens’ criminal history or record of deportations that occurred before 1995 was not included in IDENT. No information about Resendez, his criminal history, or his encounters with the INS was placed in IDENT’s lookout database when it was created in 1995. Therefore, when Resendez was apprehended by Border Patrol agents in 1998 and again on June 1, 1999, IDENT did not contain any information – such as a lookout, an alert, or information in the IDENT comments field – that would have indicated to a Border Patrol agent that Resendez had a criminal history, had been deported previously, or had an outstanding warrant for his arrest.

According to Border Patrol policies, once an alien has reached a “threshold” number of apprehensions, the Border Patrol agent may detain an alien for prosecution on the misdemeanor charge of entry without inspection. In the Del Rio Border Patrol Sector, the threshold is typically apprehensions. In the Santa Teresa Border Patrol Station, the threshold is apprehensions. However, adherence to these thresholds varied from station to station and from day to day, depending on factors such as the amount of jail space available to hold the alien, whether the court docket was full, and the United States Attorney’s Office workload. Because of these factors, Border Patrol agents sometimes voluntarily returned apprehended aliens to Mexico even after they had exceeded the threshold. Moreover, as we described previously, IDENT can often miss matches for previous apprehensions and thereby undercount the number of times an alien has been apprehended. For example, Resendez had been enrolled in IDENT seven times in 1998. Yet, when Resendez was apprehended on June 1, 1999, IDENT identified only five of seven previous apprehensions. IDENT showed an even lower percentage of apprehensions during his enrollments in 1998.

But even if IDENT had provided matches for all Resendez’s previous apprehensions, he had not reached the threshold number established in any of the Border Patrol stations where he was apprehended, including on June 1, 1999, when he was apprehended by the Santa Teresa Border Patrol.

Had Resendez’s history of prior deportations and criminal record been known to the Border Patrol agents who apprehended him, it is likely that they would have detained him and referred him for prosecution for the felony offense of reentry after deportation. Virtually all Border Patrol agents to whom we spoke said that they always referred apprehended aliens for prosecution if they had prior deportations. In light of the relative ease of proving reentry after deportation cases and the significant sentence which Resendez would have received upon conviction (based on his prior deportations and serious criminal record), the supervisory AUSAs in both jurisdictions in which Resendez was apprehended said that they certainly would have prosecuted him for reentry after deportation had the case been referred to their offices.

In sum, had the Border Patrol agents known about Resendez’s record, they would likely have detained him and referred him for prosecution, and he would likely have received a substantial sentence. But based on the IDENT information they received, the agents’ decisions to voluntarily return Resendez to Mexico conformed with Border Patrol practices.

B. The Border Patrol Agents who Processed Resendez in IDENT Made Mistakes, Although These Mistakes Did Not Affect Their Decision to Voluntarily Return Resendez

During our interviews of the Border Patrol agents who apprehended and processed Resendez in IDENT, however, we found that they exhibited confusion about IDENT. We also found that they made some mistakes using it. We found three major mistakes: 1) routinely allowing IDENT to auto verify previous IDENT entries; 2) denying valid IDENT “hits”; and 3) prosecution thresholds were not established or well known. These mistakes could potentially cause an agent to fail to recognize that an alien had reached the threshold for prosecution. Most significantly, routinely allowing IDENT to auto verify possible matches could result an agent’s failure to notice and to act on a lookout or alert for an alien. Although none of these mistakes affected the outcome in Resendez’s case, they could have been important if a lookout or an alert for Resendez had been entered in IDENT.

1. Allowing IDENT to Auto Verify Previous Apprehensions

After a Border Patrol agent enters an apprehended alien’s right and left index fingerprints in IDENT, it presents all potential “hits” for prior encounters for which the fingerprints may match (according to a scoring range set by INS). IDENT can be prompted to show screens that reveal the fingerprints and the photographs for each prior FIN that appears to match the current encounter. The agent processing the alien has four choices when reviewing the prior encounters: (1) verify the possible match; (2) deny the possible match; (3) press the “?” button, in which case IDENT will deny the match; or (4) take no action. If the agent takes no action, after approximately ten days IDENT will auto verify the match and consolidate the two entries under one FIN.

The principal INS trainer on ENFORCE (which includes IDENT training) told the OIG that Border Patrol agents are instructed to make a selection rather than let IDENT make an automatic determination several days later. This instruction is given because of the concern that if agents take no action, they may not even look at any of the information concerning possible prior encounters with the alien and could miss significant information, including a lookout or alert.

Yet, five of the eight agents who processed Resendez through IDENT told us that they normally do not review any possible matches but allow IDENT to auto verify them based on fingerprint comparison scores. From reviewing IDENT records, we ascertained that two of the five agents who were presented with possible matches while processing Resendez in IDENT did not review them but instead allowed IDENT to auto verify the prior matches.

These agents’ rationales for allowing IDENT to auto verify possible matches included not having enough time to compare the prior photographs against the aliens currently being processed; that it is “more efficient” to allow IDENT to perform this task because this frees the agent to do other things; that the agent was “more comfortable” relying on IDENT to verify matches based on its accuracy in comparing fingerprints; and even if the agent failed to notice that the alien had reached the prosecution threshold, it was not critical since recidivism was not frequently used as a basis for prosecution anyway. One agent who processed Resendez in 1998 told us that about half of the time, he did not have the time to read lookouts, alerts, or any information that IDENT provided.

Their responses were troubling since their lack of attention to IDENT could cause the agents to miss lookouts for aliens or undercount the number of apprehensions for aliens who had in fact reached the threshold number for prosecution. However, it did not affect this case because there was no lookout for Resendez at the time and he had not reached the prosecution threshold.

2. Denying Valid Hits

From our review of IDENT records, we determined that two of the three agents who compared the possible matches presented by IDENT when they processed Resendez erroneously denied the valid matches. One agent denied the single match that IDENT presented from an apprehension of Resendez that had occurred three months earlier, despite similar-looking photographs and a fingerprint matching score that is considered to be very high by IDENT standards. This agent said that he usually gave the alien the “benefit of the doubt” if he had uncertainty about the match.

The second agent erroneously denied hits for the three FINs that contained possible matches to Resendez. Although the photographs of the possible matches looked similar to the photograph of Resendez at the time of apprehension and the fingerprint match scores were very high, the agent told the OIG that neither the prints nor the photographs looked close enough for him to confirm the match. Both agents told the OIG that they were reluctant to verify matches using prior photographs unless they could be absolutely certain that it was the same person.⁴⁷

If the agent denies a valid match, IDENT will take the agent’s answer as the final authority and will not associate the alien with the previous apprehension, even if it is the same person. The alien is then given a new FIN and enrolled in IDENT as a new subject. As a result, in subsequent apprehensions of the same alien, the enrolling agent may not recognize how many times the alien has been previously apprehended.

Finally, contrary to the understanding of many of the Border Patrol agents to whom we spoke, pressing the “?” button does not allow IDENT to decide on a potential match. Rather, this action has the same effect as a denial. IDENT treats it as a “no,” then enrolls the alien as a new person and assigns the alien a new FIN.

3. Lack of Established Prosecution Thresholds

In the Del Rio Border Patrol Sector, there was no established sector-wide prosecution threshold that had been written or distributed to Border Patrol agents. Rather, it was left to the Patrol Agent in Charge of each Border Patrol Station to establish, based on individual conditions, the threshold number of apprehensions before an alien would be referred for prosecution for entry without inspection. At the Del Rio Station, the standard threshold was , and all the agents to whom we spoke knew about it. However, at the Uvalde Border Patrol Station, the Patrol Agent in Charge acknowledged to us that the agents at the station were not informed of a standard prosecution threshold or any revised thresholds based on changing conditions. Rather, he said it was left to agents to consult with a supervisor about the potential prosecution of an alien when the agent learned that the alien had been apprehended many times previously. But the agents to whom we spoke in Uvalde were not aware of any particular number of apprehensions that should trigger consultation with a supervisor or the prosecution of the alien. As a result, one agent told us that absent something unusual in the apprehension itself (such as evidence of alien or drug smuggling) or in the aliens’ demeanor, the agent would voluntarily return aliens with as many as prior apprehensions. Another agent said that recidivism was not frequently used as a basis for entry without inspection prosecutions in Uvalde, and that he had never set an alien up for prosecution on this basis during his four years at the Uvalde Station.

Because we only reviewed the threshold policies in two stations in the Del Rio Sector (the Del Rio Station and the Uvalde Station) and one in the El Paso Sector (Santa Teresa), we do not know how widespread this problem is. However, the lack of clear prosecution thresholds or policies could result in the Border Patrol’s failure to detain and refer for prosecution aliens who have been apprehended repeatedly. Again, while this problem did not affect the Resendez case, it could have a significant impact in other cases.

⁴¹ This was the fourth different name and seventh different date of birth that Resendez gave during the eight apprehensions reflected in IDENT.

⁴² IDENT records revealed that 14 aliens were enrolled in IDENT at the Santa Teresa Border Patrol Station during a three-hour time period surrounding the time that Resendez was enrolled in IDENT.

⁴³ IDENT records all enrollments, no matter where they occur, in Eastern time. For convenience, however, we refer to this apprehension throughout this report as the June 1 apprehension.

⁴⁴ We asked Tim Biggs why the initial IDENT screen showed only three pictures (one for each of the three previously created FINS), rather than five pictures (for all five possible matches in IDENT). We were concerned that an agent might not recognize that there were more apprehensions if the agent did not look at any screens other than the initial one. Biggs told us that the next version of IDENT (IDENT 2000) was making the change so that photographs from all previous apprehensions would appear on the first IDENT screen.

⁴⁵ On June 20, 1999, Cason went on annual leave. By the time he returned from annual leave, the new Assistant District Director for Investigations, Michael McMahon, had replaced Cason with two other Houston INS special agents who were assigned to work on the FBI task force.

⁴⁶ In August 1999, in response to the Resendez case and congressional concerns, the INS convened a special working group to examine fingerprint issues at the INS, including issues relating to IDENT. This group has met since then to identify specific steps to improve INS fingerprint operations and to evaluate how to integrate INS fingerprint data with the INS’s non-biometric databases and with the FBI's automated fingerprint identification system.

⁴⁷ Tim Biggs reported that a sample study of denials of possible matches revealed that at least 25 percent of denials were in fact erroneous.

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