Most people imagine the border as a distant line tracing the outer edge of the United States. The US government doesn’t see it that way. The border is officially defined as a zone that extends 100 miles inward from all external borders of the United States.
In this vast territory — encompassing 10 states, cities like Los Angeles, New York and Chicago, and nearly two-thirds of the country’s population — the Border Patrol has sweeping, almost uncontrolled powers.
A recent Supreme Court decision Egbert vs. Boule underscored these forces. A Border Patrol agent spoke to a Turkish guest at an inn in Washington state. When the owner of the inn, an American citizen, asked the agent to leave, the agent pushed him into a car and then threw him to the ground. The man filed a lawsuit, but the court ruled that even if an American citizen’s constitutional rights are violated by a federal agent, there is no right to sue if the violation occurred in the course of the agent’s official duties.
With this decision, the Supreme Court added decades of precedent that allowed Border Police to barely comply with the Constitution, particularly its 4th Constitutionth Modification protection against unreasonable searches and seizures.
The Border Patrol is not stationed at ports of entry and airports manned by Customs and Border Protection field agents. Instead, the border police monitor immigration between border crossings. In the 100-mile border zone, their agents stop cars if they have “reasonable suspicions” about their occupants. If they set up internal controls, everyone must stop for questioning and inspection. And they use racial profiles to boot.
This was not what Congress envisioned when it established the Border Patrol in 1924. The original authorization stated that an agent “may arrest any alien who, in his presence or sight, enters or attempts to enter the United States in violation of any law.”
Senator David A. Reed, a Republican from Pennsylvania, stated in the 1925 Senate debates on the legislation that border patrol agents could only operate near the border itself: “You have no right to go downtown and pick up aliens there on the street and arrest them.” He continued, “We are all vigilant against giving these officers too much power to act without a warrant.”
Nonetheless, a second clause in the Border Patrol’s permit allowed agents to extend their powers beyond the border line. They could “board and search” any “transportation” they believed would bring “aliens” to the United States.
The agents’ broad jurisdiction was unpopular with frontier residents and in Congress. In 1946, the Border Patrol’s license was revised: it was permitted to operate within the United States, but only “within a reasonable distance from any external border.”
Unfortunately, by the next year, a routine guideline interpretation in the federal registry was “a reasonable distance” set at 100 miles from borders and shorelines. Border Patrol officers were free to “board and search” any vehicle deep within the country.
Back then, there were so few border guards that the agency’s seemingly unconstitutional authority went unchallenged for decades. Eventually, in the 1970s, conflict broke out between the 4thth The amendment and Congressional approval by the Border Patrol reached the Supreme Court.
in the Almeida-Sanchez vs. United States (1973) the court restrained the agents at least in formal searches. In a 5-4 decision, the judges said Border Police, like other police officers, need consent, a warrant or probable cause to conduct a search.
Two years later, in United States v. Brignoni-Ponce, the judges considered stopping the border police. Could they be based solely on the race of the inmates?
In a unanimous decision, the judges said no, but did not rule out race as a criterion. To meet a “reasonable suspicion” standard, the court needed two factors, and one might be race. The list of other acceptable factors they provided was so comprehensive that it actually enabled the agents to stop almost any vehicle in the border zone under any circumstances.
In 1976, against Martinez-Fuerte, the United States tested the constitutionality of the Border Patrol’s fixed or temporary checkpoints established 25 to 100 miles from the border. The regulation? At a checkpoint, agents can stop any “conveyance” to ask people about their immigration status and inspect the exterior of vehicles. Based on a single suspicion, they can bring someone in for a more thorough questioning. Breed alone meets this standard.
Today there are more than 19,000 border guards, and preventing terrorism and countering drugs have become top priorities alongside immigration.
In the 100-mile limit zone, a Latino driver may be considered reasonably suspicious for staring at a passing agent or for not making eye contact. Roving stops don’t even have to be related to the vehicle in question, just the characteristics of the area.
At the 113 Inner Border Police checkpoints, what an agent in your back seat sees can lead to you being pulled over for further investigation that could well end in a search – most people will agree when asked; Little do they know they can refuse or that the agents need a probable reason to open their trunk otherwise.
At many checkpoints, agents use dogs to sniff for drugs, use radiation sensors to look for dirty bombs, and collect license plates that are stored in a database for 15 years. And now agents are immune from prosecution even when they violate the constitutional rights of immigrants and citizens alike.
The Border Patrol’s lack of borders should concern all Americans. As the Supreme Court has pointed out, Congress created agency authorization and Congress can limit or terminate it.
Legislation was introduced in the House of Representatives to reduce the border zone to 25 miles from the outer borders. An even smaller zone might be appropriate given that 58% of arrests occur within a mile of the border.
Congress should also draft new legislation that would end the immunity of federal agents who violate constitutional rights, and it should ban the use of interior checkpoints, which Border Patrol data shows are primarily seducing American citizens traveling domestically traveling and carrying small amounts of drugs.
Even if Congress does not act, the Secretary of Homeland Security, under his existing Congressional approval, could close the interior checkpoints and significantly reduce the size of the border zone.
The Border Patrol has not yet begun to use its authority on a broad basis in major cities in the 100-mile border zone. But it could. Before a new checkpoint is set up in LA, San Francisco or New York, we should consider its power.
Reece Jones is Professor of Geography and the Environment at the University of Hawaii and the author of Nobody is Protected: How the Border Patrol Became the Most Dangerous Police Force in the United States.
https://www.latimes.com/opinion/story/2022-07-17/border-patrol-border-zone-supreme-court-search-checkpoint Op-Ed: The long, deep reach of the U.S. Border Patrol