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Over the Line

Written by Subject: Checkpoints

The Virginia Quarterly Review just published an article on CBP's interior enforcement operations titled, "Over the Line - Border Patrol's Obscure, Omnipresent 100-Mile-Zone". I was interviewed by the author for the article several months ago...

~Terry Bressi, Roadblock Revelations

Article re-posted from VQR Online 

By Rachael Maddux, Illustrations by John Ritter

Illustration by John Ritter

ISSUE:  Fall 2017

On the evening on February 22, 2017, people disembarking Delta flight 1583 from San Francisco International Airport to John F. Kennedy International Airport in Queens, New York, were met at the plane door by US Customs and Border Protection (CBP) officers, who required the passengers to show their identification before being allowed down the jetway. This was strange: It was a domestic flight, and JFK is more than 250 air miles from the nearest international border crossing. Some passengers tweeted about the encounter, and their posts were quickly absorbed into the waves of fear that had been breaking for weeks. In late January, Donald J. Trump had consummated his new presidency by signing several executive orders on immigration and border security, including his embattled so-called "Muslim travel ban"; on February 17, the Department of Homeland Security (DHS) produced two memos calling for a massive hiring push, broadening deportation criteria, and laying out plans to empower local law enforcement to help with immigration-related arrests. To many nervous observers, the treatment of Americans on flight 1583 seemed like a harbinger of darker troubles to come. "Welcome to Germany circa 1943," one especially gloomy Twitter user replied to a passenger's post. "And it's just getting started."

Later, a CBP statement said the agents were helping Immigration and Customs Enforcement look for a man who was facing deportation for incurring a number of criminal charges. (He wasn't on the flight.) While it wasn't the immigration ambush some people feared, it was easy enough to speculate about Immigration and Customs Enforcement and CBP feeling emboldened by the white nationalist authoritarianism of the West Wing's new occupants. But federal immigration agents questioning American citizens making no attempt to enter or leave the country, while unnerving and of dubious legality, is hardly a sui generis phenomenon of Trump's America. Since the 1950s, Queens—along with most of New York state—has been within what's now commonly called "the 100-mile-zone," a massive swath of the United States in which Customs and Border Protection in general and Border Patrol agents in particular are empowered by federal law and Supreme Court precedent to operate far beyond the bounds of typical law enforcement.

The origins of the zone are stunningly incidental. They lay deep within the Immigration and Nationality Act of 1952, which sought to buttress US immigration and citizenship regulations in the skittish early years of the Cold War. Section 287 of the act grants "any officer or employee of the Service"—the Immigration and Naturalization Service, Border Patrol's parent agency at the time—the ability to, "within a reasonable distance from any external boundary of the United States…board and search for aliens any vessel within the territorial waters of the United States and any railway car, aircraft, conveyance, or vehicle…for the purpose of patrolling the border to prevent the illegal entry of aliens into the United States."

At the time, "a reasonable distance" was defined as being twenty-five miles from not just US borders with Canada and Mexico, but also every bit of coastline; in 1953, federal regulations expanded it—suddenly, with no input from the public, and with little explanation—to 100 miles. A 1973 Supreme Court decision, Almeida-Sanchez v. United States, held that Border Patrol agents must have probable cause to search a vehicle in the absence of a warrant. And in 1976, the Supreme Court's decision on United States v. Martinez-Fuerte affirmed Border Patrol's practice of running permanent and temporary checkpoints within the 100-mile-zone, as well as the agency's right to briefly question a vehicle's occupants "in the absence of any individualized suspicion that the particular vehicle contains illegal aliens." In 2003, Immigration and Naturalization Service was disbanded and divvied up among several other agencies under the newly formed Department of Homeland Security aegis, with Customs and Border Protection inheriting Border Patrol and its sprawling jurisdiction. 

The 100-mile-zone touches thirty-seven states (enveloping fourteen of them, some almost entirely), plus Washington, DC, and includes nine of the country's ten largest metropolitan areas. The zone covers two-thirds of the US population, about 200 million people. They live along the Rio Grande and Lake Ontario—within spitting distance of Mexico and Canada—and in decidedly un-borderlike places such as Redding, California, Columbus, Ohio, and Columbia, South Carolina. Many more travel through the 100-mile-zone every day. They go to work and to school and to the store. They visit family, they see doctors, they go to the beach and to baseball games. Some just drive and drive and drive, oblivious, relishing the freedom they believe they've been granted as American citizens. Others tread more carefully, attuned to the ever-present risks of being an immigrant or undocumented or brown or black in the United States. But even those who do know about the zone know very little about what CBP does there. That's because no one does, not fully, not even the agencies themselves. 

What is supposed to happen within the zone is known. In the name of immigration enforcement, Border Patrol agents are allowed to operate permanent and temporary checkpoints and roving patrols, in vehicles or on foot. At these stops, they should perform brief, unobtrusive searches to determine citizenship status: a few quick questions and a visual inspection of a vehicle's exterior. Agents don't need warrants to conduct these stops, but they do need reasonable suspicion to stop anyone outside a set checkpoint, and they're supposed to have probable cause—like an alert from a drug-sniffing dog—before searching the inside of a vehicle. If an agent encounters someone who's unable to provide their immigration status, they may take the person into custody. Otherwise, once an agent establishes that a pedestrian or a driver or a carful of people are legally authorized to be in the US, they're supposed to send them on their way.

In 2016, Border Patrol agents apprehended 415,816 people via checkpoints and roving patrols nationwide. But how those interactions proceeded, and the number and nature of interactions that ended in anything other than arrest, isn't known. CBP is the largest law enforcement agency in the United States, but it bucks many federally recommended best practices for law enforcement, including the one that might illuminate or absolve so many other indiscretions: data collection. At checkpoints and on roving patrols, Border Patrol agents only record the searches that end in apprehension. They do not record the total number of cars that pass through their checkpoints, how many individuals they stop and question and release, how often their dogs alert to nonexistent contraband—nothing other than apprehensions. The agency has resisted the use of body cameras and dashboard cameras increasingly adopted by local law enforcement across the country. So aside from arrest numbers, which are irregularly published online, there is no reliable public or even private record of who Border Patrol agents interact with, the nature of those interactions, when they take place, or where, or why. The border is a black box, unknown even to itself.

In the 1950s, when the 100-mile-zone was established, and on into the 1970s, when the zone's legality was upheld and expanded in court, Border Patrol employed fewer than 2,000 agents. By 1992, the number of agents was edging over 4,000. In 2002, there were more than 10,000, and in 2012 there were more than 21,000. The number has flatlined over the last few years as CBP has struggled to meet hiring quotas. But in early 2017, President Trump ordered the hiring of 15,000 more DHS agents, with 5,000 of those for Border Patrol alone. In July, the DHS inspector general issued a report questioning both the need for the hiring push and the agency's abilities to carry it out. But if hired, those agents will join the ranks now staffing thirty-five permanent checkpoints, an unknown number of temporary checkpoints, and an ever-shifting number of roving patrols nationwide. And so the black box grows and grows. 

That any meaningful information about Border Patrol activity within the 100-mile-zone is available to the public at all can be attributed almost entirely to non-governmental organizations—primarily the ACLU—and community groups and individual citizens across the political spectrum working to observe, document, and litigate their way toward greater clarity. And as numerous reports and lawsuits and shaky cell-phone videos suggest, CBP's vast jurisdiction, resistance to oversight, and rapid growth is a toxic brew, resulting in widespread violations of civil rights, human rights, economic damage, psychological distress, injury, and death, within the 100-mile-zone and beyond. 

Judicial and legislative solutions exist, from a reconsideration of the outdated Supreme Court precedents that enabled sweeping Border Patrol activity in the zone, to a reduction of the "reasonable distance" back to its original twenty-five miles (or less). But reforms have been historically stymied by insufficient political will and further hindered by the public's profound lack of awareness of the zone's existence, purpose, shadowy nature, and peoples' rights within it. "People tend to think about the border as this 'other'—this different place where special rules can apply without any negative consequences to the rest of the country, but that's not true," said Mitra Ebadolahi, a staff attorney with the ACLU of San Diego and Imperial Counties' Border Litigation Project. "Most people do live on the border, they just don't realize it. But even if you don't live on the border, you should care about the erosion of our constitutional rights, because there's no guarantee that if that erosion is established as the norm there, it won't also eventually be established as the norm in the smack dab middle of the United States."

I live in Atlanta, the only one of the top-ten most populous metropolitan areas in the US that doesn't sit within the 100-mile-zone. I first learned of the zone in September 2015, when my husband, Joe, and I were traveling in West Texas. After a few days in Big Bend National Park, we pointed our rental car north toward Marfa. We drove up Highway 118, marveling at the otherworldliness of the Chihuahuan Desert, endless miles of scrubby creosote and mesquite interrupted here and there by the tall, spent blooms of a century plant, all other humans obscured by distance or glare or dust. We were almost to Alpine, ninety miles north of the Rio Grande, when we saw the first sign for a Border Patrol checkpoint. Gradually the building itself materialized on the horizon, a long green-and-white box under a high pavilion roof, as jarring as the sight of a fast-food restaurant on Mars. I double-checked Google Maps to make sure we hadn't gone south by mistake. We hadn't. The next sign said all vehicles stop ahead when flashing. The lights were flashing, so we stopped.

Joe pulled into the checkpoint behind a pickup truck with a rusty horse trailer. We waited, watching a Border Patrol agent in an olive green uniform lead a Belgian Malinois in a black vest around the vehicle and its load. The trailer's latch was loose, and the agent directed the truck's driver off to one side of the driveway to fix it. Then it was our turn. 

The car rolled forward and an agent in sunglasses appeared at Joe's window. He asked us questions and we answered. Were we US citizens? Yes. Where were we coming from? Big Bend. Where were we going? Marfa, then Alpine for the night, then home. Was this our car? No, it's a rental, we're from out of town. "Do you need to see our passports?" I asked, pulling them from my bag. The agent shook his head and stepped away. We sat in silence—the easy silence of two young white Americans having just entered into yet another interaction with law enforcement they had no reason to think wouldn't work out in their favor. The dog snuffled around the car, just out of view.

When the agent returned, we expected him to say that we were free to go. Instead he told us to pull off to the side, behind the pickup truck, so we did. The truck's driver was still fiddling with the trailer latch and I figured we were keeping our place in line. I imagined some goofy federal statute regulating the order in which cars must enter and leave a Border Patrol checkpoint. After the pickup rumbled away, the agent reappeared at Joe's window.

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