Yes, The Border Patrol Can Probably Stop You and Ask for Papers

The 100-mile Constitution-free zone strikes again.

A news story that exploded across social media yesterday illustrates a longstanding problem.

Portland (Maine) Press Herald (“At I-95 checkpoint, Border Patrol agents question drivers and passengers about citizenship“):

U.S. Border Patrol agents conducted an 11-hour vehicle checkpoint on Interstate 95 in eastern Maine on Wednesday, stopping southbound vehicles near Lincoln in Penobscot County to ask drivers and passengers for their citizenship and immigration status, and to search vehicles with sniffer dogs.

Agents from the Houlton Border Patrol sector manned the checkpoint, arresting a man from Haiti and seizing drugs. Border Patrol said it didn’t keep track of how many vehicles the agents stopped.

Civil rights groups have sharply criticized the practice of snap immigration inspections on highways and bus stations, and said some of the checks are unconstitutional.

The American Civil Liberties Union suspects inspections have become more common during the Trump administration, and in May it sued the U.S. government for records related to immigration enforcement efforts.

“We should all be able to live our lives without being stopped by immigration agents every time we board a bus or drive down the highway,” said Emma Bond, a staff attorney with the American Civil Liberties Union of Maine. “Having (Border Patrol) constantly intruding on our lives and demanding that we show our papers doesn’t make us any safer, but it will make us less free.”

Border Patrol would not name the man it arrested Wednesday, but said he was a Haitian national with an outstanding deportation order from 2007 and prior arrests for cocaine possession, possession of a concealed firearm and resisting an officer, as well as a protection order from Lee County, Florida. An immigration violation was issued to another person during the checkpoint, Customs and Border Protection spokesman Steve Sapp said.

Agents made nine narcotics seizures including some LSD, a case that was turned over to Maine State Police, he said.

People are naturally gobsmacked that this could be happening in Maine of all places. But, as Phillip Bump explains, anyone within 100 miles of any US international border is subject to search—and, despite our vast size, most Americans live within 100 miles of a border.

WaPo (“Can the Border Patrol ask for your papers? This tool shows if you’re in the ‘border zone.’“):

We’ve seen other stories of Border Patrol stops in random places in recent months as media attention and the focus of the Trump administration has turned to the subject of immigration. A checkpoint in New Hampshire this week. A woman in Montana was stopped by a Border Patrol agent who heard her speaking Spanish. (She was a citizen, born in Texas.) There have been a number of stories about Border Patrol agents walking the length of Greyhound buses, asking to see people’s proof of citizenship — enough such stories that Greyhound is now caught up in a political fight largely outside its control.

There is a constitutional protection against being searched without a warrant, raising the question of how such demands from the Border Patrol are legal. If you’re crossing the border, you’re used to having to display a passport. But when you’re in the middle of Maine?

As it turns out, the middle of Maine — and much of northern Montana — are considered to be withing the “border zone” of the United States. In fact, the entire states of Maine and New Hampshire are within the border zone, which extends 100 miles into the United States from every border and every coast. According to the American Civil Liberties Union, two-thirds of Americans live within the border zone, a function of the number of major cities located near the coast.

Everyone in New York City lives in the border zone and can be asked to show identification to Border Patrol agents. Everyone in Los Angeles. Everyone in Seattle, Houston, Chicago and the District. Every single person in Florida. An extensive look at the border zone by CityLab determined that more than 7 in 10 nonwhite Americans live in the border zone.

As the headline implies, the article links a “tool” that allows you to see how close you are to an international border. While, as a Virginian, I don’t think of myself as living near such a border, I’m actually a mere 6.9 miles from one. Why? Because, while most of us don’t think of it that way, the Atlantic (and Pacific) Ocean and various coastal tributaries (in my case, the Potomac River) are in fact borders.

I discussed the broader phenomenon a few weeks back in a post titled “Two-Thirds of Americans Live in ‘Constitution-Free’ Zone.” My focus there, though, was on the southern border with Mexico:

Essentially, for the purposes of border enforcement, we’ve redefined “probable cause” as “looks Hispanic.” Combined with longstanding SCOTUS rulings that people in motor vehicles have essentially no expectation of privacy, this makes much of the country “Constitution-free.”

[…]

In fairness, we’re a continental nation with a two thousand mile-long border with a developing nation. Patroling that border effectively is next to impossible. To the extent that we wish to keep migrants from crossing that border in violation of our laws—and stem the flow of illicit drugs, too—there has to be some latitude given to authorities beyond hot pursuit. Effectively, though, that means choosing between enforcing those laws and living in a free society. At least, for non-white people living in vast swaths of the country.

But, as the more recent cases highlight, it’s actually even more bizarre. As Doug Mataconis and I were discussing on Twitter yesterday, whatever the merits of the 100-mile zone for the southern border, it’s absurd to have it for the coastlines. What sense does it make to harass American citizens driving through Maine, costing who knows how many wasted man-hours of the citizenry, in a fishing expedition that yields one poor sap from Haiti who has overstayed his visa?

It’s worth noting, too, that our wrath should be reserved for the Congress, for exacting this broad policy, and for the Executive policymakers who are using their discretion in such an abusive fashion (as noted in the Constitution-free Zone post, the Obama administration had already ramped up their use of this tactic), not the low-level agents tasked to enforce it. Border Patrol and ICE agents are just doing their jobs. It’s the nature of police forces to vigorously enforce the laws. It’s up to us, then, to change the parameters if we don’t like the results.

FILED UNDER: Borders and Immigration
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. OzarkHillbilly says:

    Why? Because, while most of us don’t think of it that way, the Atlantic (and Pacific) Ocean and various tributaries (in my case, the Potomac River) are in fact borders.

    Tributaries are not borders (the Mississippi sure isn’t), there has to be some other factor contributing to such a designation if the Potomac is being considered one.

    Also, I am finding it hard to believe that Chicago, a city on the shore of a lake that is completely within the boundaries of the United States and well over 250 miles away from any international border can be considered within the “Border Zone.”

    ETA: It occurs to me that Chicago could be considered an international port and that would be the reason for it? A bit of a stretch in my mind but I suppose legally possible.

  2. James Joyner says:

    @OzarkHillbilly:

    Tributaries are not borders (the Mississippi sure isn’t), there has to be some other factor contributing to such a designation if the Potomac is being considered one.

    I’m writing off the top of my head there. No, inland waters aren’t. There are a lot of coastal waters—the Potomac here, the Gulf of Mexico, etc.—that aren’t the Atlantic or Pacific but count as a border.

  3. Joe788 says:

    No wrath for the SCOTUS, which approved interior immigration checkpoints?

  4. James Pearce says:

    Border Patrol and ICE agents are just doing their jobs.

    While I’m not of the “abolish ICE” set, I did see a pretty good reaction to this argument on Twitter.

    Maybe this –harassing people for papers not for crossing a border but for merely being within its vicinity — shouldn’t be a job.

  5. James Joyner says:

    @Joe788:

    No wrath for the SCOTUS, which approved interior immigration checkpoints?

    I’m not a fan of SCOTUS’ soft reading of the 4th Amendment, as I’ve noted several times over the years. But I get their reluctance to legislate from the bench as to the precise distances and whatnot.

    @James Pearce:

    Maybe this –harassing people for papers not for crossing a border but for merely being within its vicinity — shouldn’t be a job.

    I tend to agree but, again, there have to be some reasonable exceptions unless we’re simply going to declare open borders. We’re a continental country with a much poorer southern neighbor; if we can only stop people we actually see crossing the border, we’re going to have an even bigger flood than we have now.

  6. OzarkHillbilly says:

    @James Joyner:

    There are a lot of coastal waters—the Potomac here, the Gulf of Mexico, etc.

    The Potomac is not a coastal water, it is a tributary to coastal waters:

    Coastal waters:

    (1) The term “coastal zone” means the coastal waters (including the lands therein and thereunder) and the adjacent shorelands (including the waters therein and thereunder), strongly influenced by each other and in proximity to the shorelines of the several coastal states, and includes islands, transitional and intertidal areas, salt marshes, wetlands, and beaches. The zone extends, in Great Lakes waters, to the international boundary between the United States and Canada and, in other areas, seaward to the outer limit of State title and ownership under the Submerged Lands Act (43 U.S.C. 1301 et seq.), the Act of March 2, 1917 (48 U.S.C. 749) [48 U.S.C. 731 et seq.], the Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America, as approved by the Act of March 24, 1976 [48 U.S.C. 1801 et seq.], or section 1 of the Act of November 20, 1963 (48 U.S.C. 1705), as applicable. The zone extends inland from the shorelines only to the extent necessary to control shorelands, the uses of which have a direct and significant impact on the coastal waters, and to control those geographical areas which are likely to be affected by or vulnerable to sea level rise. Excluded from the coastal zone are lands the use of which is by law subject solely to the discretion of or which is held in trust by the Federal Government, its officers or agents.

    It does however lie entirely within 100 miles of the Atlantic coast, so maybe that is the deal with that?

    Also, I found this that may answer my question re Chicago:

    Coastal Waters Law and Legal Definition

    According to 33 USCS § 2601 (2), the term coastal waters means–
    “(A) the territorial sea of the United States;
    (B) the Great Lakes and their connecting waters;
    (C) the marine and estuarine waters of the United States up to the head of tidal influence; and
    (D) the Exclusive Economic Zone as established by Presidential Proclamation Number 5030, dated March 10, 1983 [16 USCS § 1453 note].”

    I say may because it implies all of the Great Lakes, which seems an oversimplified definition of complex federal law, a “dumbing down” for non lawyers like me, which doesn’t make it wrong, but that is not what I got from the Cornell site. I’m feeling too lazy to do anymore research on a Saturday morning though.

  7. MarkedMan says:

    @James Joyner: For years there has been an obvious way to reduce the flood of poor illegal immigrants: jail the people that hire them. But neither Republicans nor Democrats want to touch this third rail. Instead we handle it the way most police forces “handle” prostitution – they arrest and harass the prostitutes but let the johns walk away. I have been in a few places where they tried to actively pursue the johns and publicize their names and it had a dramatic effect on the trade, but was always very, very short lived.

    So rather thank tackle the problem in a meaningful way, we stand up tens of thousands of agents to follow brown people around and demand their papers, humiliating them in public on a regular basis.

  8. Kathy says:

    Border Patrol and ICE agents are just doing their jobs.

    “Following orders” is not a valid defense when the orders are to violate the rights of other people.

  9. MarkedMan says:

    @OzarkHillbilly: Huh, by an act of Congress there is one other lake, Lake Champlain (I think that’s it) that is legally defined as one of the Great Lakes. (It’s a long story and not as ridiculous as it sounds.) I wonder if the agents are free to harass brown people there too?

  10. OzarkHillbilly says:

    @MarkedMan: It’s far easier to punch down at people with little to no legal recourse. Besides, they can’t arrest the president.

  11. OzarkHillbilly says:

    @MarkedMan: Part of it is in Canada so it makes sense. Kind of.

  12. Gary Austin says:

    @OzarkHillbilly: Tributaries have international shipping as does Lake Michigan. Many illegals stowaway or are intentionally transported by international ships. The purpose of the constitution is not to protect and foster illegal immigration…

  13. James Joyner says:

    @MarkedMan:

    For years there has been an obvious way to reduce the flood of poor illegal immigrants: jail the people that hire them. But neither Republicans nor Democrats want to touch this third rail.

    I’m not an expert on immigration enforcement but prefer this route as well. But, understandably, the majority of Americans are more sanguine with harassing people who “look Mexican” near the border than they are going after (mostly) white-owned business owners and forcing them to prove their workers are legal. It’s only when the actual consequences of these policies get shown on teevee that people start questioning them.

  14. OzarkHillbilly says:

    @James Joyner:

    But, understandably, the majority of Americans are more sanguine with harassing people who “look Mexican” near the border than they are going after (mostly) white-owned business owners and forcing them to prove their workers are legal.

    Near the border or otherwise, a lot of Americans are quite comfortable with racist state actions, but I don’t find it understandable.

  15. MarkedMan says:

    @James Joyner:

    the majority of Americans are more sanguine with harassing people who “look Mexican” near the border than they are going after (mostly) white-owned business owners and forcing them to prove their workers are legal.

    Moving forward with persecuting the illegal immigrants while letting the employers continue hiring them is not morally neutral. It means Federal Immigration Agents becomes a tool the employers use to keep employees under their thumb. I have personal experience at a restaurant where the management had called immigration agents on their kitchen staff and busboys when the staff became angry after finding out the management had cheated them. After the agents had hauled the staff off to jail the restaurant turned right around and hired more illegals.

  16. Jack says:

    They can stop you and ask….there is no law that says you must reply, nor can they continue to detain you for failing to reply.

    United States v. Fuentes

  17. OzarkHillbilly says:

    @Gary Austin:

    Tributaries have international shipping as does Lake Michigan.

    So why is it I have never seen a CBP agent patrolling the waters of the Mississippi in St Louis?

    The purpose of the constitution is not to protect and foster illegal immigration…

    The purpose of the constitution is to define the powers of the govt and the limits of those powers and the rights of citizens. It has diddly squat to say about illegal immigration.

  18. James Joyner says:

    @Jack:

    They can stop you and ask….there is no law that says you must reply, nor can they continue to detain you for failing to reply.

    United States v. Fuentes

    You’ve cited dicta from a 9th Circuit opinion that ruled against Fuentes! Congress has authorized and SCOTUS has allowed these immigration checkpoints. The Border Patrol can, by definition, detain you at an authorized checkpoint for failing to reply.

  19. Richard Gardner says:

    I always thought the international ocean boundary was 12 nautical miles offshore (13.8 statute miles), except for negotiated boundaries between the USA and Canada (Dixon Inlet AK/BC still disputed).

    Yes, blame the northern tier politicians in DC that were envious of all the money the southern border was getting and cried we want money too, resulting in overstaffed Border Patrol offices with little to do.

  20. Stormy Dragon says:

    @James Joyner:

    You have a fifth amendment right to remain silent with regards to your immigration status. The agents require reasonable suspicion to detain you and probable cause to arrest or search you.

    Since exercising your fifth amendment rights alone cannot qualify as either reasonable suspicion nor probable cause, the question become what other basis the agent has for detaining you, particularly when the detention continues long enough to become an arrest.

  21. Mike Schilling says:

    You’ve left a step out. What authorizes any branch of government to suspend the Constitution in any zone. close to a border or otherwise?

  22. Andre Kenji de Sousa says:

    @MarkedMan:

    For years there has been an obvious way to reduce the flood of poor illegal immigrants: jail the people that hire them.

    You don’t need to do that. A national ID card combined with strengthened labor laws(Requiring each employer to register any hire) would do the job.

  23. James Joyner says:

    @Mike Schilling:

    You’ve left a step out. What authorizes any branch of government to suspend the Constitution in any zone. close to a border or otherwise?

    The Constitution is just a piece of paper; it’s not self-enforcing. When Congress passes a law and the President signs it, it’s presumed Constitutional. The recourse is for someone with standing to sue and have a Federal court rule it unconstitutional. In this particular instance, the Supreme Court has ruled that the law is not in violation of the Constitution.

    You’re free to disagree with SCOTUS. I frequently do. But them’s the rules.

  24. Gary Austin says:

    @James Joyner: @OzarkHillbilly:

    You’re right it doesn’t say anything that protects illegal immigration.

    And just because you don’t see CBP on the Mississippi doesn’t mean that they weren’t there. I was on the Customs Blue Lightning Strike Force and was on the Mississippi, did you see me?

    Did you see CBP on a Greyhound bus? No? Well, here’s my reply to an article about that.

    The truth is:
    ICE/Border Protection may enter the bus if they receive permission from the driver or if they are TICKETED. They may then conduct law enforcement activities and if you obstruct them you are subject to arrest for obstruction of justice…

    As for racism or racial profiling and authority to detain:

    ICE/Border Protection can detain any non english speaker or person of heavy foreign accent who refuses to display a passport. It is in no way racial profiling and you are not a race, other than Caucasian, based on national origin. Unless you have ancestors who were Asian or Sub-Saharan African you are members of the Caucasian race. Being from Spain no more makes you a RACE than being from Italy or Ireland.

    Identifying, or appearing to identify, as a foreign national is reason to be asked to display a passport. If you fail to display a passport in that case you are legally subject to detention.

    International law states that all foreign nationals must carry and display their passport when required by authorities…

  25. Gary Austin says:

    @OzarkHillbilly:
    Yes you’re right about the constitution. It does not in anyway protect illegal immigration.

    Also, just because you didn’t see CBP on the Mississippi doesn’t mean that they weren’t there. Are you all seeing? I was with U.S. Customs Blue Lightning Strike Force and I was on the Mississippi, did you see me?

    Did you see CBP on a Greyhound? No? Well here is my reply to a post about CBP on a Greyhound.

    The truth is:
    ICE/Border Protection may enter the bus if they receive permission from the driver or if they are TICKETED. They may then conduct law enforcement activities and if you obstruct them you are subject to arrest for obstruction of justice…

    As for racism or racial profiling and authority to detain:

    ICE/Border Protection can detain any non english speaker or person of heavy foreign accent who refuses to display a passport. It is in no way racial profiling and you are not a race, other than Caucasian, based on national origin. Unless you have ancestors who were Asian or Sub-Saharan African you are members of the Caucasian race. Being from Spain no more makes you a RACE than being from Italy or Ireland.

    Identifying, or appearing to identify, as a foreign national is reason to be asked to display a passport. If you fail to display a passport in that case you are legally subject to detention.

    International law states that all foreign nationals must carry and display their passport when required by authorities…

  26. Gary Austin says:

    @Stormy Dragon:
    Yes, you can take the 5th. However, if you don’t speak English, or speak with a heavy foreign accent, and refuse to show a passport you can still be detained by CBP.

  27. Gaty Austin says:

    If you haven’t seen this, here is my reply to a post about CBP boarding a Greyhound bus.

    The truth is:
    ICE/Border Protection may enter the bus if they receive permission from the driver or if they are TICKETED. They may then conduct law enforcement activities and if you obstruct them you are subject to arrest for obstruction of justice…

    As for racism or racial profiling and authority to detain:

    ICE/Border Protection can detain any non english speaker or person of heavy foreign accent who refuses to display a passport. It is in no way racial profiling and you are not a race, other than Caucasian, based on national origin. Unless you have ancestors who were Asian or Sub-Saharan African you are members of the Caucasian race. Being from Spain no more makes you a RACE than being from Italy or Ireland.

    Identifying, or appearing to identify, as a foreign national is reason to be asked to display a passport. If you fail to display a passport in that case you are legally subject to detention.

    International law states that all foreign nationals must carry and display their passport when required by authorities…

  28. Mister Bluster says:

    If you haven’t seen this,..

    Yes we saw this three times 9:22, 10:49, 11:04 on this thread and now from your evil twin Gaty at 11:06.

  29. Console says:

    @Gary Austin:

    This is BS though. Because you can detain anyone that doesn’t show a passport or prove their citizenship. By policy, you might only harass people that dont speak whitey, but the reality is that you can detain anyone for a few days including US citizens. And the reality is also that most US citizens don’t carry proof of citizenship on their person. So everything you do is based on profiling and guesswork. The law enforcement agency with the least amount of requirements to join gets the most latitude to harass people. What a country.

  30. Mister Bluster says:

    Dear Supreme Leader and Chairman of the Republican Sex Workers Party* Kim Jong Trump creates yet another Constitution Free Zone in his head.
    When somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came.
    Reuters

    *A brothel owner who compares himself to Trump and wrote a book called ‘Art of the Pimp’ won his GOP primary in Nevada

  31. Alex says:

    In 2008, the US Border Patrol came to Jefferson County, WA and set up suspicionless checkpoints and bus boardings- away from border crossings and ports of entry.

    At a local Border Patrol forum a lady asked:

    “What is the penalty for not identifying oneself to federal agents at an internal, suspicionless checkpoint?”

    US Border Patrol said they would call in the Sheriff when a person refused to identify themselves.

    Sheriff says they will not respond to a non-emergency situation involving a person peaceably refusing to interact with federal agents.

    Question about providing ID is at 0:35

    https://www.youtube.com/watch?v=-eJQ1IzS6FE

  32. Tyrell says:

    How is this different from searches I go through at theme parks and sports events?

  33. Mister Bluster says:

    I’ve been to Disneyland, Disneyworld, Universal Studios, Sea World, Wrigley Field, Candlestick Park and other Major League Ballparks and have never been subject to a search.
    Where you been going Ty?

  34. Console says:

    @Tyrell:

    The threat of jail…

  35. Tyrell says:

    @Mister Bluster: I am referring to search of bag, search of waterproof money case, and walk through detector. At Disney sometimes the line was twenty minutes long.

  36. Azure Isabelline says:

    Trump knows nothing of the law and to him all people trying to cross the border are “illegals” or “animals”; not people. If you leave “people” out of the sentence you’re engaging in dehumanizing, if you use “animals” you’re on the path that led to horrors like the Rwandan and Armenian genocides. Please, for your own humanity, remember their humanity.

    Criminalizing asylum seekers is a violation of their human rights according to international law. People weigh their choices: almost certain death of their families if they stay or a long, expensive, dangerous trip with the hope someone will hear them when they talk of the politically or revenge motivated murder of everyone dear to them except for their 5 year old child. They don’t expect privileged white men to snicker at them, snatch their child and put them on a plane to the county they left… oh, and yes, people get killed when they get back. They don’t want to leave their home but why don’t you try to imagine watching your back constantly- or the government snickering as they return a battered and bruised woman to her abuser?

    Trump loves the rulers who do that to people so yeah, he’ll make them go back, he’ll support Kim Jung Un and every dictator on the planet. Just because he wants to be an asshole doesn’t mean ICE was right to celebrate being able to “finally do their job right” when some people and Vlad bought into his garbage and “elected” him.