The Border Patrol claims jurisdiction over all U.S. territory within 100 miles of any land or water border. That includes much of Minnesota, all of Florida, most of New York State, much of California, Washington, D.C., Los Angeles—in all, the areas where most U.S. residents live. Within this extensive area, the Border Patrol claims the right to stop and question anyone about their citizenship status. As the ACLU describes it:
- The Fourth Amendment of the U.S. Constitution protects Americans from random and arbitrary stops and searches.
- According to the government, however, these basic constitutional principles do not apply fully at our borders. For example, at border crossings (also called “ports of entry”), federal authorities do not need a warrant or even suspicion of wrongdoing to justify conducting what courts have called a “routine search,” such as searching luggage or a vehicle.
The Border Patrol notoriously exercises this jurisdiction by questioning passengers on Greyhound buses and—a few months ago—by demanding proof of citizenship from Ana Suda and Martha Hernandez in Havre, Montana. Why? The officer said he questioned them because they were speaking Spanish as they waited in line at a convenience store.
Both women are U.S. citizens, and they are now suing Customs and Border Protection (CBP), with assistance from the ACLU:
“There was no legitimate reason for Agent O’Neal and other CBP agents to detain Ms. Suda and Ms. Hernandez. Speaking Spanish does not establish reasonable suspicion to justify a stop and detention, much less probable cause for an arrest,” wrote their lawyer, Alex Rate, an attorney with the ACLU in Montana….
“The case will test the agency’s broad powers to patrol the US border zone — any area within 100 miles of a land or water border — and to stop and question people they suspect of being in the country illegally. The Supreme Court has generally upheld this practice, with a few exceptions. The lawsuit also challenges long-held stereotypes about what Americans are supposed to look like and sound like in an era of fierce anti-immigrant rhetoric.”
Immigration attorney Cyrus Mehta describes another recent incident:
“In summary, the agents boarded the bus at the Spokane Intermodal Bus Station and began questioning passengers about their citizenship. When Mr. Elshieky admitted to the Border Patrol agents that he was not a U.S. citizen but informed the agents that he had been granted asylum in the United States, the agents rejected the Employment Authorization Document (EAD) and driver’s license that he offered them, and asserted that he was “illegal”. After questioning Mr. Elshieky for roughly 20 minutes outside the bus in freezing weather, and checking by phone with supervisors, the agents finally allowed Mr. Elshieky to reboard the bus and go on his way.”
Note: The Employment Authorization Document is specifically enumerated in U.S. law and regulations [8 C.F.R. § 264.1]as one of the documents that is sufficient for identification.
“The bottom line, therefore, is that the Border Patrol got the law wrong. I would respectfully suggest that this misunderstanding by the Border Patrol, including not only the agents on the ground but the agency’s own official spokesperson, is illustrative of a broader problem….
“Checking documents within the United States to enforce the immigration laws in the interior of the United States is not the Border Patrol’s job, or at least should not be. As the case of Mohanad Elshieky illustrates, forcing the square peg of the Border Patrol into the round hole of interior enforcement can produce deeply problematic results. The Border Patrol should stick to patrolling the border, and leave interior enforcement and legal interpretation to better-qualified agency components.”
Some good news:
While the just-passed budget deal doesn’t do much for immigrants, it apparently does try to protect relatives who are willing to sponsor migrant children held in detention. The Department of Health and Human Services has been sharing information on immigration status of sponsoring relatives with ICE, which has then used that information to deport the would-be sponsors. The budget legislation bans arresting sponsors with no criminal records.
Los Angeles Sheriff Alex Villanueva says he is going to limit cooperation with ICE.
“I want local law enforcement, and obviously my department, to be viewed as part of the community, working hand in hand with the community and not as agents of immigration enforcement,” Villanueva said in an interview with The Times this week. “We have to balance the needs of the immigrant community and the community at large.”
In North Carolina, it’s good news, bad news. Several newly-elected sheriffs across North Carolina also said they will not participate in ICE programs that make local officials adjuncts of the federal agency. Some have also said they will follow federal court orders on ICE detainers, which say it is unconstitutional to hold individuals for ICE unless a judge has signed a warrant. ICE has staged one large sweep in retaliation and says there will be more:
“I think the uptick you’ve seen is the direct result of some of the dangerous policies that some of our county sheriffs have put into place, and it really forces my officers to go out on the street and conduct more operations out in the community, at courthouses, at residences, doing traffic stops,” [ICE field office director Sean Gallagher] said. “This is a direct correlation between the sheriffs’ dangerous policies of not cooperating with ICE and the fact that we have to continue executing our important law enforcement mission.”