(Editor’s Note: This article is part of a Just Security series in conversation with the new book, The President and Immigration Law, by Cristina Rodríguez and Adam Cox. The series will bring together expert voices on immigration policy and reform to reflect on the book and to chart a path toward a more sustainable and balanced immigration system. All articles in the series can be found here).
The President and Immigration Law is a book of great importance as we consider near and long term alternatives after a long period of intensifying immigration enforcement. Adam Cox and Cristina Rodríguez offer an original and convincing argument that Congress has given the executive branch wide ranging enforcement powers of which the executive has taken full advantage. Their rich historical account is organized around two distinct geographies, interior enforcement (including deportation) and external enforcement (including admissions and, to some extent, the border ). This is appropriate for many issues, but it leaves neglected the U.S. border regions, especially the land border with Mexico, characterized by exceptional discretion and lack of enforcement restrictions. Legitimate trade and travel at borders, which are vital to the U.S. borderland economy and society (and indeed much of the interior) also need attention, as the extraordinary discretion and enforcement powers of the borderlands impact licit flows as well as illicit. To be fair, The President and Immigration Law does touch on some borderland issues in their coverage of border patrolling. But—consistent with Cox and Rodríguez’s analysis—more remains to be said.
Life on the Border
The U.S. side of the borderlands has a large resident population, with over three-quarters of them U.S. citizens. While there is no single definition with easily accessed data, an often-used metric, all the U.S. counties that touch on the Mexican border, had 7.8 million people in 2019 (calculated from the U.S. census by the author). Of this, 56.4 percent is Hispanic. Immigration policing in this region with reduced restrictions can justifiably be characterized as racialized (especially because, as we will see, people of Mexican-origin are legally and practically profiled). Some of what I say applies also, but in less intensive form, to the Canadian land border and all ocean (and Great Lakes) borders.
Search and Seizure Discretion in the 100-Mile Zone
A 100-mile deep border zone brings a number of impingements on rights that profoundly impact life beyond the crossing of the actual boundary; here the enforcement discretion that Cox and Rodríguez discuss is at its zenith. In the U.S.-Mexican borderlands it is implemented through a chain of checkpoints on all main roads departing the heavily settled area near the border itself. Other than taking remote paths—which itself provides reasonable suspicion for a Border Patrol stop—everybody has to subject themselves to warrantless questioning about residency, with sequelae (i.e., being pulled to the side for intensive questioning, putatively based on accumulated legal reasons, but in practice a series of social and psychological judgments involving race, class, and so forth). At airports and other transport hubs well inside the boundary Customs and Border Patrol (CBP) scrutinizes everyone through visual inspection and warrantless pull-asides, even for domestic-origin, domestic-destination travel. On land, the Border Patrol typically boards common carriers to question riders (with permission of the carrier, though not of the passengers; passengers are expected to answer about residency status)). Worthy of note is that racial profiling is explicitly allowed by executive branch policy at border crossings, checkpoints, and airports. The extreme executive discretion that characterizes immigration policy and especially border enforcement thus results in the normalization of search criteria which would be unacceptable anywhere else in the country.
Search and seizure protections are diminished in other ways, whether in law or practice, in the border region, even when not directly crossing the international boundary or detected doing so. Within 25 miles of the border, the Border Patrol can, without permission or a warrant, enter private property. Most of the border population lives within this 25-mile zone, except for Tucson, Arizona, and northern San Diego County, California. Intrusive Border Patrol operations at night that noisily enter properties—to the point of climbing on roofs—and brightly illuminated residential areas, are reported by the residents of Sunland Park, New Mexico, a poor and predominantly Hispanic community. However, given the discretion granted to the Border Patrol in this zone, even these complaints may not be legally actionable.
Brief stops and questioning of motorists and passengers, and pedestrians (“roving patrols”), ostensibly are governed by standard Fourth Amendment guidelines within the 100-mile strip outside checkpoints. In practice, however, Border Patrol is weakly limited by the governing court decisions; Border Patrol trains officers on a list of 21 articulable facts that are almost infinitely applicable, and, as a Patrol Agent told me, nobody really worries about them anyway. Racial profiling is permitted in roving stops by Brignoni-Ponce if there are other articulable facts. Brignoni-Ponce offers a kind of backdoor permission, since profiling solely is forbidden, but additional factors are almost always available. In fact, the real constraint on racial profiling of Mexican-origin or similar people in the borderlands is volume, not legal protections against discriminatory enforcement. Hispanic or Latino persons make up such a large percentage of the population that racial/ethnic profiling does not distinguish people enough. CBP agents and officers therefore typically combine this profiling with considerations such as class (apparent wealth, work, etc.), geographic area (poor settlements), and so forth. The people whose rights are diminished in practice are working class Hispanic citizens, legal residents, visitors, and unauthorized crossers – the populations who are also least likely to defend themselves with private lawyers.
The Infrastructure of Enforcement: Enhanced Surveillance and Exceptional Powers
The density of border policing is hard to convey to someone who does not live in the region. There is widespread surveillance, including stadium lighting, fixed and mobile cameras, radar, helicopters, aerostat balloons, fixed wing aircraft, drones, motion sensors, cell signal sensors, license plate readers, and so forth. For many of these surveillance techniques, there is no public disclosure or documentation of the extent, results, and error rate of the massive collection. These certainly are used in interior policing, but are denser and more intrusive in this region.
There are also 16,700 Patrol Agents. Some are at fixed sites, some are in remote desert locations, but most rove densely inhabited areas with webs of roads. The public image of the border is desolate, which is partly true in some areas, but often this is a fully inhabited region. It is not just being watched that matters (though the impact of this observation should not be discounted). With greater scrutiny comes greater likelihood of being detected in some federal law violation or another, which is especially significant when we note the fine-grained inequalities of exactly who and which localities are most intensively watched within the broader region. The results of disproportionate policing and scrutiny in general have also been well documented and include greater likelihood of entering the criminal justice system. We can expect that these effects map onto the border region, where enforcement scrutiny is as intense as anywhere in the country.
The reduced rights accorded the U.S.-side of the border are epitomized by way that normal rules and procedures are suspended or inapplicable in this zone. For example, Congress has granted the Secretary of Homeland Security the power to waive 48 environmental, cultural, historical and other laws as needed for the construction and maintenance of the border wall; they also made judicial appeal difficult. The widespread use of eminent domain (over 360 cases in less than a year alone, 2007-2008) has, according to the Texas Tribune, involved “unfair real estate deals, secretly waiv[ing] legal safeguards for property owners, and ultimately abus[ing] the government’s extraordinary power to take land from private citizens” in one of America’s poorest regions. In Arizona, the construction of the wall has brought destruction of sacred, burial, and natural sites of the Tohono O’odham people, while in the lower Rio Grande valley it has disrupted an enduring, deep, and meaningful relationship of local people with the river.
Construction of this physical infrastructure has been supplemented in recent years by the declaration of a national emergency at the border in 2019. The executive power to declare emergencies is another instance of exceptionality given to the president by Congress in the National Emergencies Act. As a number of experts have shown, including border-region experts, there is no meaningful emergency involved. Border community organizations and government entities including El Paso County, have responded by suing to enjoin the emergency monies directed to border wall construction; an injunction initially was obtained but is stayed and under appeal.
Unconnected to putative emergencies, National Guard and active duty troops have been assigned to the border nearly continuously from President George H. W. Bush onward; the latest instance started in 2018. The truth is that these operations are mostly symbolic and pointless; they involve such marginally effective tactics as installing huge masses of razor wire along the boundary. The notable exception to this inefficacy is military support for the widespread surveillance described above, which significantly multiplies the reach of oversurveillance. Far from enhancing national security, declaring the border to be in a state of emergency is publicly demeaning to a region actually noted for its low rates of violent crime, and compounds the racist fear and negativity with which the border is viewed. It also adds to the gradual militarization (in a broad sense, as in using low-intensity warfare methods) of this civilian region.
Despite these high-profile declarations and deployments, however, the military remains far less important than the occupation of the borderlands by CBP which has subjected the region, as well as the migrants, to a shocking level of abuse and corruption. U.S. immigration enforcement agencies (especially CBP) have an empirically demonstrated high level of legal, verbal, and physical abuse. These organizations also have serious problems with corruption. CBP has high attrition and disciplinary termination rates, and reports low morale despite being an employer providing exceptionally well-paying jobs in one of the poorest regions of the country.
Community Across Borders
The U.S. borderlands with Mexico are intensely binational. Some elements of Cox and Rodríguez’s exposition bear on legal entry into the country, as well as self-presentation for asylum and unauthorized border entry. But the impacts of unleashed executive discretion also need to be placed in the context of the importance and intensity of ordinary border crossing for the region. For example, the El Paso Port of Entry alone in 2018 received north-bound crossing of 811,000 trucks, more than 12 million cars with 22 million passengers, and 7 million pedestrians, yet it is neither the largest commercial port (Laredo) nor non-commercial port (San Ysidro in San Diego County). The economic value of this trade was $81.9 billion. To indicate the personal importance of border crossing, in a random-sample, binational survey (files of the author), 64% of El Paso respondents had crossed within the previous two years while 25% of Ciudad Juárez respondents had crossed; 64% of El Pasoans have close family in Juárez, and 63% of Juarenses have close family ties in El Paso.
Though many people move around the world, and in particular the U.S.-Canada border is similar, it is thus worth emphasizing that for borderlanders, border crossing is economically valuable, personally meaningful, and often frequent. Yet such crossers have long been subject to an exceptional search and seizure regime and recently, serious de facto barriers. The extent of the border search exception to the Fourth Amendment is debated, but the courts have generally accorded the executive branch exceptional powers of search, seizure, and short-term detention.
These exceptional powers are not merely theoretical. People often report long periods made to wait and intensive interrogations when returning to El Paso, without any articulation of suspicion or facts. While constrained in their searches by the enormous volumes of traffic, which limit the time of inspectors and supervisors to be intrusive, inspectors are uneven and some are arrogant and abusive. There is a shortage of inspectors at the southwestern border by the metric of the government’s own staffing model; and everyone on all sides is exhausted, cranky, hot, and polluted—a bad mix with arbitrary power. The reasons why the ports are underfunded vis-à-vis Border Patrol is a matter of subtle argument, involving counterfactuals., but we need to consider the argument by Cox and Rodríguez about the prioritization of enforcement by both Congress and the executive.
Enforcement Emphasis Meets COVID
Moreover, since the advent of COVID-19 the Trump administration has engaged in a de facto effort to slow down or even shut the Mexican and Canadian borders. It is difficult to parse what is happening since much of it is not officially stated and is implemented inconsistently, but some elements appear to be these: U.S. citizens and legal residents are allowed to go into Mexico and to return (or if they live in Mexico, to visit the United States), but Mexican visitors with a repeat entry visa (“border crossing card”) are now denied entry which has negative family and economic impacts. Mexicans are allowed into the United States if they are deemed “essential” but that is a flexible (not to say hypocritical) term, with strong components of social power (Mexican elites) and economic interests (Mexican truckers, farmworkers, etc.). Inspectors have a great deal of discretion in practice.
The effects of these restrictions apparently disappointed the administration; the flow of people remained high during the spring and summer. The number of people holding rights to cross may have been underestimated by people not familiar with the borderlands. So, unannounced, there has been an aggressive effort to slow down traffic. This includes longer time in inspection—debatably appropriate–and reducing available lanes, which is counterproductive, unnecessary, and unquestionably punitive. This policy seems to merely continue the Stephen Miller-designed xenophobic policy of using public health justifications to restrict immigration – and though the public health emergency is real, the policy is no more rational than previous iterations.
The slowdowns and arbitrary distinctions at the border compound the use of COVID-19 as a rationale finally to stop all asylum-seekers, no matter how compelling their cases, from reaching safety in the United States. A description of all the anti-asylum measures exceeds the bounds of this essay (see this summary), and broadly is consistent with Cox and Rodríguez’s long history of exclusionary approaches to migration.
Two points may not be well known, however. The first is that help to refugees (in the social, not strictly legal sense) has been for four decades an important part of the U.S. borderlander ethos, though certainly debated locally and not wholly embraced. This was demonstrated by an enormous outpouring of voluntarism on the U.S.-side of the border in 2018-2019. Trapping refugees in crime-plagued Mexico or returning them to persecution at home, then, cuts them off from a largely sympathetic community.
Second, we now need a critical analysis of the use of “quarantine” to close or reduce flows through borders, for the present and for the future. Without diving into a legal analysis of the CDC’s authority to expel asylum seekers (increasingly the same used to keep Mexican visitors from entry), there is little substantive justification for this policy on its face. There is at least as much COVID-19 in the United States as Mexico (though data in both countries are not completely reliable). Rational public health strategy would involve systematic testing, contact tracing, and isolating or quarantining affected individuals, not separating millions of people by nationality, which particularly affects borderlands.
We need to envision the future. The provision of enormous resources with wide discretion and few legal restrictions, combined with an enforcement orientation, needs to be addressed on both long-term and immediate horizons. In the short term, CBP desperately needs top to bottom reform. An important thrust of our recent work has been detailing much needed reforms. Issues with CBP are typically treated as a matter of a few “bad apples.” We propose instead that accountability needs to be extended energetically through the organization, whereby supervisors and managers are held responsible for the conduct of their officers. CBP, an organization given wide legal latitude, and operating among people accorded little voice or respect, must be held accountable.
In the long term, immigration is more positively than negatively viewed for the first time in Gallup’s long time-series of opinion polling. This is a trend we can build on to change the scenario described in The President and Immigration Law. Legislating generous and fair future legal immigration, refuge, and asylum, by reducing the size of unauthorized migration flows, will reduce the enforcement burden on the border. But less dramatically, Congress, the Courts, and the executive branch all need to address, in many detailed ways, a key tendency. We have treated the U.S. borderlands almost as if it is an unpopulated enforcement zone, as if it were external to the country, even when it is filled with U.S. residents and visitors, going about their daily lives. The latter understanding encourages us to limit unbounded executive discretion through reviving rights, respect, and accountability in ways powerfully indicated in this book. Our borderland needs to be valued as a place of relationship, rather than racialized fear, and U.S. borderlanders viewed as full members in the national society.