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A new policy taking effect Tuesday could give federal immigration officials in San Diego the authority to quickly deport far more people without an immigration hearing. It also raises new questions about the special powers granted to U.S. Customs and Border Protection within the 100-mile border zone.
Current rules allow U.S. Customs and Border Protection to use so-called “expedited removal” – quick deportations of people arrested by immigration officials within 100 miles of any land border or coastline who have been here for less than two weeks – without having to bring them before an immigration judge.
The new policy will expand that authority so officials can use expedited removal on immigrants who are found anywhere in the country and can’t prove they’ve been in the United States for more than two years – a much larger pool of people.
But in places like San Diego County, where CBP has expanded authority because it is within the 100-mile border zone, advocates worry the new policy could lead to abuses of power, like an increase in questionable traffic stops, that immigrants would have virtually no power or process to challenge.
Immigration officials inside of the 100-mile border zone have wide authority to stop vehicles and set up highway checkpoints, and can search private land within 25 miles of the border. A majority of the U.S. population – about 65.3 percent – lives within the border zone, according to a CityLab analysis.
David Loy, the legal director for the ACLU of San Diego and Imperial Counties, is concerned that the expansion of expedited removal could lead to an increase in illegal traffic stops by border officials. And because expedited removals are not subject to any judicial review, it will be extremely difficult to challenge potentially illegal stops.
“It would actually give an incentive – more of an incentive than Border Patrol already has – to make more illegal stops,” Loy said. “They really have no reason not to make the illegal stop if it won’t be reviewed at all.”
Though border agents have expanded powers within the border zone, there are still legal limits on when they can stop and detain people.
Border Patrol agents can stop drivers if they have “reasonable suspicion” that a crime or immigration violation has been, or will be, committed. That’s a lower bar than the probable cause standard needed to arrest someone or obtain a search warrant.
“In general, though, an agent’s level of suspicion is based on facts that agents can observe,” VOSD’s Mario Koran explained in 2017. “A car with a low-riding bumper might indicate the driver is smuggling drugs or people in the back, for example. Agents can also run vehicle license plates through its database to see if they match records involved in criminal investigations. They may receive tips or consider intelligence the agency has gathered. All could potentially lead to reasonable suspicion.”
In 2015, the ACLU of San Diego and Imperial Counties sued Customs and Border Patrol to obtain records detailing the agency’s “roving patrol” operations throughout Southern California. Documents show that agents conducting roving patrols between January 2011 and July 2014 stopped and detained people for sometimes ambiguous or murky reasons, like drivers speeding or slowing abruptly, not looking at agents who pulled up alongside the car, sitting rigidly upright in seats, acting nervously in the presence of Border Patrol agents or simply driving toward Los Angeles. Another more recent set of records received by the ACLU contained Border Patrol training materials that described what agents should contemplate when pulling someone over, including “whether the vehicle or its load looks unusual in some way,” or “whether the passengers appeared dirty,” The Intercept reported in January.
Racial profiling in these stops has also been a longstanding concern. In the 1970s, the Supreme Court ruled that agents could use race to make these stops, as long as it’s not the only factor. But in 2000, the 9th U.S. Circuit Court of Appeals, which covers California and Arizona, rejected “any reliance on Hispanic appearance or ethnicity” in making roving patrol stops.
In immigration court, if an individual has an attorney, he or she can contest the legality of a stop. There is no guarantee of a government-appointed attorney in immigration court, the way there is in criminal court, so many illegal stops are never questioned, said Loy.
Loy said the ACLU of Southern California recently had a case where a man’s deportation proceedings were terminated because officials violated his rights in pulling him over.
Jonathan Mondragon was driving north on I-15 when a CBP vehicle pulled up next to him on his right. After about a mile, he wanted to change lanes to take an exit, but the CBP officer would speed up or slow down, hindering his ability to merge and exit. Mondragon sped up, passed the officer and took the next exit. The officer followed him and pulled him over.
The government tried to argue that the officer had reasonable suspicion to stop Mondragon for several reasons, including that the freeway he was on “is frequently used by illegal aliens and smugglers who are attempting to make their way north in the United States” – an argument that could be used to pull over basically anyone who takes the I-15 North. The government also argued that the officer’s suspicion of Mondragon was reasonable because Mondragon never looked at the officer while driving, he passed the officer and exited the freeway, and because the car he was driving had multiple owners within six months and hadn’t recently crossed the border.
“Respondent was driving on a well-trafficked interstate highway north of San Diego, on a weekday in the late afternoon,” wrote Immigration Judge Sebastian Patti, in his order to terminate Mondragon’s case. “Case law confirms that his initial deceleration and subsequent exit from the highway is common behavior of both citizens and noncitizens alike. The same applies to Respondent’s alleged failure to look at the CBP officer while he was driving – common sense compels the conclusion that keeping one’s eyes on the road is not only customary, but in normal circumstances valued.”
Under the new policy, if the individual pulled over by CBP in such a stop can’t demonstrate that they have been in the U.S. for more than two years, they will not go to deportation proceedings before an immigration judge, but through the expedited deportation process that doesn’t involve judicial review. There would be little to no opportunity for someone to show that their constitutional rights were violated before they are removed from the country.
On Friday, three members of Congress reintroduced legislation to scale back the border zone, from 100 miles to 25 miles for vehicle stops, and from 25 miles to 10 miles for access to private property to try and limit this broad authority of CBP.
“We must strike a better balance between protecting our national security and preserving our constitutional rights,” said Rep. Peter Welch, a Democrat from Vermont, who introduced the measure in the House, in a statement. “A 100-mile unfettered enforcement zone is overly broad and unduly restricts the constitutional rights to privacy and protection against warrantless searches of millions of Americans living in this zone.”