Curbing the Unchecked Power of the U.S. Border Patrol Though it is a domestic law enforcement agency, its actions are shrouded in a veil of secrecy similar to that of military and intelligence operations.

DANIEL DENVIR

@DanielDenvir

Oct 30, 2015

Search YouTube for "Border Patrol checkpoint refusal" and spend hours watching Americans refuse to answer the question, “Are you a U.S. citizen?” "That's my business," one man responds. "Correct me if I'm wrong: Did I stumble into Mexico or is this still the United States?" The videos make for entertaining viewing. What doesn’t is a May clip of U.S. citizen Jess Cooke being tased after questioning agents at a checkpoint near Ogdensburg, New York. For many in Texas, Arizona, New York, and other states abutting Mexico and Canada, Border Patrol checkpoints are a daily reality on local roads. Federal agents can and do stop drivers going about their daily lives even when they are not crossing an international boundary, and they do so at checkpoints without the requirement of any particular reasonable suspicion or probable cause. Border Patrol agents can, after stopping a driver at a checkpoint, decide to send some into "secondary" for further questioning or a search; the latter requires a warrant, consent, or probable cause often provided by a dog sniff, according to the ACLU. Critics say the selection process is, however, in large part based on the racial profiling of Latinos. It is impossible to know how many checkpoints are in operation or if their number has grown in recent years, because Customs and Border Protection, Border Patrol's parent agency, refuses to make their number or location public. "Remember," a CBP official emailed CityLab, "there’s a criminal element that would be interested in that information."

In fiscal year 2008, the Border Patrol had 128 checkpoints nationwide, according to the Arizona Republic. CBP tells CityLab that Border Patrol now has 35 "permanent checkpoints" and "the capability to open 182 Tactical Checkpoint sites along both borders as illegal border activity trends demand." CBP says that "the Border Patrol carefully selects checkpoint locations to maximize border enforcement while minimizing the burden on law-abiding travelers, and the effect on legitimate traffic," according to a statement released to CityLab. But Border Patrol shrouds its operations in a veil of secrecy typical of military and intelligence operations, even though Border Patrol is without a doubt a domestic law enforcement agency, patrolling the streets of American cities and operating a web of highway checkpoints that force Americans to stop and explain themselves to federal agents in the course of routine travel. CBP, including both Border Patrol agents and CBP officers stationed at ports of entry, has more officers than than any other domestic law enforcement agency in the country. Border Patrol's size has exploded over the past three decades, growing from 4,139 agents in fiscal year 1992 to 9,212 in 2000 and 21,444 in 2011, according to CBP. It boasted nearly 21,000 agents in fiscal 2014. Border Patrol has normalized policing practices that would be considered patently unconstitutional if carried out by local police. Recently, CBP has pledged better oversight of agents' use of force, and the agency's data indicate that the use of force has indeed declined. The agency also told CityLab that details on internal investigations would soon be released to the public for the first time. But the basic operation of interior checkpoints remains a core piece of the agency's enforcement strategy. Amid unprecedented scrutiny placed on police misconduct, Border Patrol's stop-and-search dragnet remains firmly entrenched. *** Isaac, a U.S. citizen of Mexican descent who lives in El Paso, Texas, says that Border Patrol frequently refers him to secondary inspection when he crosses a checkpoint. He thinks it is, in part, racial; white friends, he says, typically get waved through. He calls the stops and searches "harassing, a little degrading. … I feel like they're looking at me like a criminal." Most of all, it is plain annoying: The stops can take between 30 minutes and an hour if agents call for a dog to sniff his truck.

Isaac, who asked that his last name not be used, buys and sells motorcycles for a living, and he generally must pass through at least one checkpoint every week in his travels throughout West Texas and southern New Mexico. Once, an agent doubting that Isaac was on his way to pick up a bike reviewed emails on Isaac’s phone to confirm the story, he says. Now that Isaac has a nicer and newer truck, things have improved. His view of Border Patrol hasn't. "I teach U.S. citizen courses. Because of that I'm kinda familiar with constitutional law," he says. "I'm aware of what the law states. But I'm also aware of the reality." For Isaac, humiliation and lost time have become a cost of doing business near the border. He consents to searches because he imagines that it would cause him more trouble not to, and says that Hispanics know they are racially profiled but are either ignorant of the law or afraid to ask questions. It's unclear to what degree racial profiling takes place, however, because the Border Patrol seems to keeps no records at all on detentions and searches if they do not result in an arrest or a seizure. Earlier this month, the ACLU of Arizona released a report documenting recent records of civilian complaints against Border Patrol in the Tucson and Yuma, Arizona, sectors. Most of the 142 complaints reviewed were complaints of alleged Fourth Amendment violations, such as illegal stops and searches. And just one appeared to have resulted in discipline against an agent—a one-day suspension in response to a complaint that involved a stop of a vehicle apparently driven by the son of a retired agent. The records, released in response to a lawsuit, suggest that discipline is exceedingly rare and also that Border Patrol has in the past dramatically underreported the number of complaints they receive. According to Brian Erickson of the ACLU of New Mexico Regional Center for Border Rights, when most people file a complaint with Border Patrol they never hear back, except for maybe a form letter acknowledging receipt of the complaint. "It's kind of amazing that they don't have to justify who they detain and why," says Erickson. "Whether it be excessive use of force or racial profiling, the Border Patrol currently answers to no one, and there's very much a perception that agents who do wrong are not held accountable by anyone. There's no transparency." Allegations of physical abuse are commonplace. Accountability, however, seems rare. Border Patrol practices relating to serious use-of-force incidents

were long "anything but transparent," according to a Homeland Security Advisory Council report issued in June. The report did praise a new direction under CBP Commissioner Gil Kerlikowske, who has emphasized training agents in de-escalation techniques, improving detention standards, and exploring the adoption of body cameras. And since August 2014, CBP has for the first time the ability to conduct internal criminal investigations into possible wrongdoing by employees. According to CBP data, use of force has indeed dropped in recent years, falling from 1,215 incidents in fiscal year 2013 to 1,037 in 2014 to 768 in 2015. But Border Patrol's recent history makes critics skeptical. In a report completed in 2013, the Police Executive Research Forum concluded that "it is not clear that CBP consistently and thoroughly reviews all use of deadly force incidents." Investigators found evidence that agents shot at rock throwers and at moving vehicles out of frustration—not physical threat—and shot at fleeing vehicles after intentionally putting themselves into a position where such a shooting would become justified. "It is suspected that in many vehicle shooting cases, the subject driver was attempting to flee from the agents who intentionally put themselves into the exit path of the vehicle, thereby exposing themselves to additional risk and creating justification for the use of deadly force,” reads the report. CBP refused to release an unredacted copy of the embarrassing report to Congress, and only made it public last year after a copy was obtained by the Los Angeles Times. At the same time, CBP Commissioner Kerlikowske issued new guidelines governing the use of force, including that agents should only shoot at rock throwers if they are in serious danger and that they should not step in front of moving vehicles. They also publicly released the agency's revised use-of-force manual and required that every use of deadly force be investigated. Erickson of the New Mexico ACLU says that Kerlikowske deserves credit, including for finally releasing the agency's revised use-of-force policy. But he says that conditions have in many cases yet to improve on the ground, and that transparency still sorely lacks. Body cameras and data collection on checkpoint stops are still needed, along with public disclosure of that data and information relating to use-of-force investigations and discipline.

But CBP still provides no information to the public on specific use-of-force incidents, their investigations, and any resulting discipline. According to a statement from CBP, that will soon change. "We are working toward releasing the findings of the Use of Force Review Board. This is a new process and we're just now completing the steps in the process on the first cases to go through it. We will release the findings in those cases soon and that information will be available to the public,” the statement reads. Asked whether those findings would include actual details of specific cases or would be limited to aggregate data, a CBP official said he didn't know. Like most others interviewed for this story, they spoke on condition of anonymity because they were not authorized to speak on the record. (Not that they were not authorized to speak per se, but because that is how officials, controversially, often prefer to handle media relations.) Between January, 2010 and June 29 of this year, at least 35 people have died as a result of force used by CBP officials acting in the line of duty, according to the ACLU of New Mexico. In September, a federal grand jury indicted Border Patrol agent Lonnie Swartz for the 2012 murder of 16-year-old Mexican citizen Jose Antonio Elena Rodriguez. Swartz reportedly shot Elena Rodriguez 10 times in the neck and head in Nogales, Sonora, through a border fence in Nogales, Arizona. Border Patrol has said the agent was responding to rock throwers. Elena Rodriguez's family has said Elena Rodriguez was walking home from a basketball game. The Arizona Republic found basic problems with the Border Patrol account of the incident, finding that "it would be all but impossible for a rock thrown from Mexico to hit someone near the fence on the U.S. side" from where the teen died. "And the agent (or agents) would have had to be standing at the fence to fire through the 3 and 1/2-inch gaps between the bars." It was only the third indictment against a Border Patrol agent for a use-of-force death since 2005, according to the Republic, and the first to be brought by federal prosecutors. Prior cases were brought by local prosecutors and failed to secure convictions. CBP only released Swartz's name last November after a judge ordered them to do so. *** Kerlikowske's moves to rein in excessive force have seemingly made some progress. But it does nothing to change Border Patrol's authority to run interior

checkpoints, the tool that gives them more policing power and control over the public than that afforded to any other law enforcement agency in the country. Border Patrol claims the authority to conduct vehicle searches within 100 air miles of any border, and the right to question individuals and detain them anywhere within the United States—New York, Los Angeles, Washington, D.C., Boston, Chicago, Miami. Roughly two-thirds of Americans live inside an area that Border Patrol treats as a "Constitution-free zone," according to the ACLU. The intrusive practices, however, have been selectively reserved for areas of the country closer to a land border, creating a parallel constitutional reality that New Yorkers or Angelenos would likely find outrageous if applied in their cities. Last summer, El Paso Congressman Beto O'Rourke texted me a photo of a checkpoint he encountered on his way to southwestern New Mexico's Gila Wilderness: orange cones lining the road to a series of open-air hangers, flanked by one of Border Patrol's signature green-and-white SUVs. For years, he didn't think twice about checkpoints he had passed hundreds, if not thousands, of times. But in 2009, Representative O'Rourke, then an El Paso city council member, says he was stopped and sent into secondary screening while driving to visit his sister in Carlsbad, New Mexico. "I came through and was pulled over into secondary, which has never happened to me before. And then my 2-year-old son was put into a holding cell while they searched my truck. I didn't have anything worth searching for," said O'Rourke. "I remember how awful I felt being in that cell and how un-American that felt. I had not crossed an international border ... yet was detained, questioned, and searched without probable cause. And that's a shitty feeling. And a lot of people experience that." It is extremely difficult, if not practically impossible, to travel from much of the border region to the interior of the United States without passing a checkpoint. A Border Patrol official confirmed that anyone leaving El Paso for the interior would confront one. "El Paso is the safest city when you look at violent crime," says O'Rourke. "There's no reason to cordon off the U.S. side of the U.S.-Mexico border from the rest of the country." In New Mexico, residents of Las Cruces, the state's second largest city, cannot travel to Albuquerque with marijuana lawfully prescribed under state law without risking confiscation by federal agents at Border Patrol checkpoints,

according to the Albuquerque Journal. CBP insists that "Border Patrol checkpoints are operated for the purpose of immigration enforcement." And while agents can refer someone to secondary for a suspected immigration violation based on no specific rationale at all, they must have a slightly higher bar, “reasonable suspicion,” for a referral based on a suspected violation of general criminal laws, according to CBP. In an interview, CBP and Border Patrol officials seemed unsure about what legal requirements, like probable cause, governed agents searching cars for possible immigration and general criminal violations. One finally stated that probable cause was not necessary to conduct an immigration-related search. According to James Lyall, an attorney at the ACLU of Arizona, that is false: Probable cause, consent, or a warrant is always necessary for a vehicle search not conducted at a port of entry. "They have no idea what the rules are, in part because they can so easily ignore them," he says in an email. According to one official, most people consent to the search—perhaps unaware that they do not have to do so. Mission creep is abundant. Checkpoints, according to available data, have more success finding marijuana than they do unauthorized immigrants. In fiscal year 2014, Border Patrol made 9,548 apprehensions and seized 156,239 pounds of marijuana at interior checkpoints, according to CBP data provided to CityLab. That accounted for just under two percent of the total 486,651 apprehensions made by Border Patrol but more than eight percent of the total 1,922,545 pounds of marijuana seized. Erickson says that ubiquitous drug dogs are a key way that agents generate probable cause for a search. Those dogs often make false hits, forcing innocent people into invasive and time-consuming secondary searches. All of this may run afoul of Supreme Court precedent. In 2000, the Court specifically ruled against law enforcement maintaining any checkpoint for general law enforcement purposes like drug interdiction. The majority opinion in City of Indianapolis v. Edmond states no past ruling should be interpreted so as to "indicate approval of a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing." One checkpoint, near Sierra Blanca on I-10, is particularly notorious as a pot dragnet. Past snares include Snoop Dogg, Fiona Apple, and Willie Nelson. It

seems doubtful that in any of these cases agents doubted the lawfulness of the well-known artists' presence in the country. Hudspeth County Sheriff Arvin West reportedly no longer takes checkpoint pot cases referred by Border Patrol because of the cost. Unsurprisingly, this alternate reality near the border proves especially troublesome for undocumented immigrants. Last year, undocumented immigrant activist Jose Antonio Vargas visited McAllen, Texas. He was detained by Border Patrol on the way out, and was surprised to discover that undocumented immigrants who live close to the border can be more or less trapped there. Vargas, likely due to his high profile, was released. Today, after years of record-high deportations, those inside the country without authorization have experienced some reprieve as President Obama has somewhat restricted Immigration and Customs Enforcement (ICE) and pulled back from workplace raids common during the Bush era. On the border, however, fear that routine travel will end in deportation proceedings remains. The restriction on travel is an annoyance, and a barrier that separates friends and family. It can be more than that, too. A Texas law that would close abortion clinics across Texas, including the sole clinic in the Rio Grande Valley, is on hold in anticipation of a likely U.S. Supreme Court review. If it is upheld and goes into effect, Border Patrol would effectively trap undocumented women in the Valley inside a Roe v. Wade-free zone. There's no easy way out of the Rio Grande Valley and into the rest of the country without passing by a checkpoint. "Closing the last clinic in the Rio Grande Valley means that undocumented women would be altogether denied access to abortion, since the line of interior border checkpoints would prevent these women from traveling to one of the few remaining clinics in the state," according to a statement from Jessica González-Rojas, executive director of the National Latina Institute for Reproductive Health. "Ultimately, undocumented women could be trapped in an area of the country with no abortion provider, no way to travel, and the constant fear of deportation. The implications for human rights and women's health cannot be underestimated." *** Advocates say that Hispanics are more often stopped for secondary searches thanks to widespread racial profiling. Last December, then-Attorney General Eric Holder issued a new rule banning federal law enforcement from engaging

in racial profiling—but exempted much of CBP after the Department of Homeland Security, according to The Washington Post, lobbied for a carveout. The Department of Justice referred questions about the carveout to DHS, even though the exemption was made by DOJ. According to CBP, the agency "as a matter of DHS and CBP policy, does not racially profile." But CBP did not explain why the agency received a carveout. One official suggested that CityLab inquire at DOJ. Finally, speaking on the condition of anonymity, a CBP official told CityLab that race and nationality could be factors, just not the only factor, in enforcement. That poses a problem for people in El Paso, more than 80 percent of whom are Hispanic. In New Mexico, nearly 48 percent are. Since Americans are not required to carry proof of citizenship with them while going about their daily lives, those who do not have a passport handy on the highway cannot definitely prove that they are in the United States legally. Having brown skin and speaking Spanish are seemingly some of the few factors that could render someone suspicious. It was the 1976 Supreme Court case U.S. v. Martinez-Fuerte that backed "Border Patrol's routine stopping of a vehicle at a permanent checkpoint located on a major highway away from the Mexican border for brief questioning of the vehicle's occupants ... in the absence of any individualized suspicion that the particular vehicle contains illegal aliens." The majority opinion, which provoked a ferocious dissent, even ruled that it would even be constitutional to base referrals to secondary "largely on the basis of apparent Mexican ancestry." The rationale for the racial profiling exemption—like so much else about a law enforcement agency that in a few decades’ time grown to become one of the nation's largest—remains obscured by secrecy and rarely debated. http://www.citylab.com/crime/2015/10/curbing-the-unchecked-power-of-the-us-border-patrol/413392/