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‘Roving Patrol’ Abuses and the Demand for Transparency: The ACLU and its FOIA Request to the DHS and CBP

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On February 10, 2015, the American Civil Liberties Union of San Diego and Imperial Counties (ACLU-SDIC) filed a lawsuit against the United States Border Patrol in order to elicit the organization’s records from June 2011 through February of 2015.  The lawsuit charges that the Department of Homeland Security (DHS) and United States Customs and Border Protection (CBP) have failed to respond to requests for information regarding U.S. Border Patrol’s interior ‘roving patrol’ operations. A roving patrol operation is defined by the lawsuit as the “warrantless stop and seizure” of non-citizens within a reasonable distance of the United States border. [1] A reasonable distance, per the guidelines set forth in the Federal Register of 1957, is “100 air miles from any external boundary, including coastal boundaries.” [2]. Today, such a reasonable distance encompasses about two-thirds of the nation’s population and nine of the country’s ten largest cities. [3] The lawsuit filed by the ACLU-SDIC on behalf of those unlawfully targeted by the United States Border Patrol’s patrol tactics, argues that today’s Border Patrol agents are not adhering to this antiquated statute and engage in unapproved Border Patrol practices that reach far into the U.S. interior.  Such behavior and the United States Border Patrol practices, according to the ACLU-SDIC, are unlawful and must be addressed, as they are evidence of widespread illegal practices unregulated by the Border Patrol’s parent agencies, DHS and CBP.

The lawsuit filed this week by the ACLU-SDIC is not the first claim to be brought against DHS and CBP. Rather, this lawsuit is one of many filed in response to “the pervasive abuse and systemic failure of oversight and accountability at all levels of the CBP.” [4] Lawsuits from 2013 and 2014 further illustrate the pervasive nature of the Border Patrol’s roving exercises and the Fourth Amendment violations that result from such unregulated patrols. These past lawsuits prove that the United States Border Patrol agents performed their duties in an unrestricted manner, resulting in instances of racial profiling, unauthorized detainment, and warrantless investigations. Further evidence of constitutional deprivation is published in university and national studies. [5] These studies conclude that:

USBP agents act on the assumption that no matter where they operate within the United States, they may arrest any noncitizen whenever that person is not carrying detailed documentation that provides proof of status. But USBP’s records also show that the agents are not genuinely interested in what documents the law might require noncitizens to carry. Instead, USBP’s demand for “papers” is universal, resulting in an enforcement culture that maximizes arrests. [6].

Subsequent reports support such research findings, as it is established that many of the roving patrol stop and seizures result in very few deportation proceedings (less than 1%). The majority of these stops and seizures, however, did result in “clear violations of agency arrest guidelines, including improper reliance on race as a basis for questioning passengers and arrests of lawfully present individuals.” [7].

The federal statutes regulating the patrolling jurisdictions of the United States Border Patrol were written in 1957 and have not changed since. While they have been revisited several times since their inception – 1964, 1988, 1992, 1994, and 2003 – the text of the statutes have not changed. [8] 8 CFR § 287.1(b), a subpart on the Federal Law on Immigration, defines the territorial boundaries of the United States Border Patrol as “100 air miles from an external boundary of the United States or any shorter distance.” [9] The federal regulation does provide Border Patrol agents with the ability to expand the 100-mile patrol radius.  However, such expansion of patrolling territory must result from unusual circumstances and be reasonable, suggesting that agents are generally disallowed from expanding their patrolling radii with great frequency. [10] 8 U.S.C. § 1357(a)(3) authorizes the presence of the Border Patrol agents in the territories within the 100-mile radius from the nation’s borders. Likewise, this federal statute asks that patrol agents adhere to the territorial limitations placed upon them by the federal government. [11]

Between 2009 and 2012, however, 809 abuse complaints were filed against Border Patrol agents, leading civil rights lawyers to question the regard that Border Patrol agents hold for these federal statutes. [12] Such statistics persuade policy makers and lawyers to conclude that oversight bodies in charge of the Border Patrol, namely DHS And CPB, lack the ability to enforce appropriate adherence to federally mandated patrol regulations. Policymaker and ACLU-SDIC representatives allege that the rapid growth of the CPB, which doubled its agent count to 21,000 and increased its operating budget by 97% between 2004 and 2012 has rendered the agency too big to control and therefore somewhat autonomous of the legal parameters used to regulate its enforcement abilities. Adrienna Wong, Staff Attorney with the ACLU Foundation of Southern California, agrees with the problematic expansion of Border Patrol officers and territorial jurisdiction. She believes that the “Border Patrol operates as a rogue agency, claiming extra-constitutional powers that extend far from any border, and operating with no effective oversight.” [13]

A Border Patrol spokesman echoed these sentiments in an article by Al Jazeera America in 2013. When informed that Alice Texas is situated more than 100 miles from the United States-Mexico border, he stated, “the law does not say that we cannot patrol. Our jurisdiction kinda changes.” [14] Likewise a New York Times article from 2013 detailed the checkpoint stop of Senator Patrick Leahy more than 125 miles south of the United States-Canada border in New York State. When Senator Leahy questioned the patrol agent as to the authority that enabled him to stop an individual so far from the border, “the agent pointed to his gun and said, “That’s all the authority I need.”” [15] These incidents illustrate the pervasive expansion of border patrol authority and the disregard that current agents show for the federal statutes that place limits on their behaviors.

It is the statutes, however, not the behavior of the patrol agents, that need to be scrutinized. The statutes were created in 1957 and have not been updated or revised since. As they currently stand, the statutes are vague and leave room for agents to assume greater territorial reach and therefore greater patrolling abilities. For there to be greater accountability on the part of the Border Patrol agents, there needs to be greater legislative analysis placed on the statutes and the language contained within. The suit brought forth by the ACLU-SDIC this week is one of many that seek to address the constitutional violations imposed on citizens and noncitizens of the United States due to the vagueness of the language contained within the federal immigration laws and the behavior of the Border Patrol agents in carrying out their duties as the role of border security expands.

Sources

[1] The Associated Press, ACLU Sues for Records on Border Patrol’s ‘Roving Agents’, ABC NEWS (Feb. 11, 2015), http://www.abcnews.go.com/US/print?id=28874563.

[2] 8 C.F.R. § 287.1(b).

[3] U.S. Census Bureau, United States Census 2010, Interactive Population Map, Issued January 2011. Available at http://1.usa.gov/1qF0Wsx.

[4] ACLU Border Litigation Project, Freedom of Information Act Request/Expedited Processing Requested 3-5 (2015).

[5] Id.

[6] Families for Freedom & NYU Law Immigrant Rights Clinic, Uncovering USBP: Incentives Programs for United States Border Patrol Agents and the Arrest of Lawfully Present Individuals (Jan. 2013), available at: http://bit.ly/1bjjh8h.

[7] Id.

[8] 8 C.F.R. § 287.1(b).

[9] Id.

[10] Id.

[11] 8 U.S.C. § 1357 (a)(3).

[12] Families for Freedom & NYU Law Immigrant Rights Clinic, Uncovering USBP: Incentives Programs for United States Border Patrol Agents and the Arrest of Lawfully Present Individuals (Jan. 2013), available at: http://bit.ly/1bjjh8h.

[13] University of California Irvine School of Law, ACLU Demands Transparency of Border Patrol’s Extensive “Roving Patrol” Operations 2 (Feb. 10, 2015), available at: http://www.law.uci.edu/news/press-releases/02-10-15.html.

[14] Michelle Garcia, Securing the Border Imposes a Toll on Life in Texas, AL JAZEERA AMERICA, Sept. 25, 2013, available at http://alj.am/1cWPDkz.

[15] Todd Miller, War on the Border, N.Y. TIMES, Aug. 18, 2013, available at: http://nyti.ms/1bjgk7r.


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