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How the Unchecked Expansion of Customs and Border Protection Threatens Our Democracy

Photo: Shutterstock / Photo_Grapher

What does it mean to “secure our borders”?

Indefinite detention without access to an attorney or a judge. For-profit prisons where detainees are beaten and die from a lack of medical care. Refugees turned away or detained at airports and borders—in violation of domestic and international law. Government agents who abuse, threaten, and kill with almost total impunity. We don’t have to use some cynical twist of the imagination to conjure these images; this has become the reality of “border security” in our current political age, and thousands of U.S. Citizens have already been caught in the crossfire.

In late January of 2017, protesters flooded airports nationwide to protest President Donald Trump’s travel ban; elected leaders joined them in demanding that Customs and Border Protection (CBP) comply with an injunction blocking the ban’s implementation. Yet CBP flagrantly violated the federal court order—a move that Congressional representatives called a constitutional crisis—when it denied elected officials and attorneys access to detainees and refused to tell Congressional representatives the names and number of individuals in their custody.

To make matters worse, the recent Supreme Court decision to reinstate part of the travel ban gives even more discretionary power to an agency that frequently abuses the rights of individuals in its custody, and that already refuses to answer to Congress and the courts. Indeed, it isn’t only the rights of some of the most vulnerable people people in our country that are at stake—this tension also threatens the very core of our democracy. To grapple with the full magnitude of the issue, however, we ought to look beyond airports—to the country’s southern border.

With markedly fewer activists, attorneys, and elected officials monitoring CBP at the southern border of the United States, rights violations there have been even more egregious than at airports. My organization, Al Otro Lado, is one of a few legal organizations on the border monitoring rights violations of both refugees and deportees. We’ve found that CBP has unilaterally undone decades of international diplomacy and domestic legislation by systematically denying refugees—including women and children—the right to seek asylum at the U.S.-Mexico border. There has been a 70-percent drop in border apprehensions since Trump took office, but because information regarding the total number of “turn-aways” is not publicly available, it’s impossible to say the extent to which that reduction is driven by CBP’s unlawful rejection of asylum seekers. While some might view a drop in migration as a positive trend, CBP has employed fraud and abusive, prolonged interrogation to achieve this end.

What, exactly, makes this unlawful? If a person claims fear of persecution at the southern border, CBP is legally required to refer that person to an asylum officer to determine whether that fear is credible. However, most migrants interviewed by Al Otro Lado tell a different story. Al Otro Lado has interviewed dozens of asylum seekers from all over the world who report being abused by CBP or outright denied the opportunity to speak with an asylum officer. We’ve also recruited pro bono attorneys who have sought to represent refugee families, only to have them watch CBP turn their clients away at the border. In April, Senators Kamala Harris and Dianne Feinstein tried to intervene in a case involving a young female asylum seeker and her two children who were illegally turned away three times; when they wrote to CPB to inquire about the case, the agency lied in their response, telling the senators that the woman “did not express fear of returning to Mexico.” Al Otro Lado has since filed a class-action lawsuit against the agency on behalf of those asylum seekers whose lives are threatened by CBP’s denial of their right to access the U.S. asylum system.

CBP’s abusive treatment isn’t limited to refugees or travelers from Muslim countries. U.S. citizens have also reported being subjected to physical and sexual abuse, prolonged interrogation, and threats of detention, family separation, and deportation. Several U.S. Citizens have reported being detained in excess of eight hours and threatened into falsely claiming, on video, that they weren’t actually born in the United States. These individuals report having had their passports and other documents proving their U.S. citizenship confiscated by CBP. What’s more, U.S. citizens—including children—are among the dozens who have been shot by Border Patrol agents, with little information regarding the shootings made public by the agency.

This sort of boundless authority has far-reaching consequences. Constitutional guarantees of access to counsel, freedom from unreasonable search and seizure, and freedom from confinement without due process generally don’t apply to CBP. This is due to a series of outdated laws and policies, many of which were implemented with little to no Congressional review. Courts have consistently found that national security trumps privacy interests at the border, but few realize that CBP’s jurisdiction extends 100 miles from both land and coastal borders—an area that includes two-thirds of the U.S. population and our nation’s largest cities. CBP can conduct warrantless searches and seizures and “investigatory detention” anywhere in this “100-mile zone,” where those who are detained have no right to contact an attorney. Near downtown Los Angeles, CBP officers have already made 14 arrests in 2017 alone, a number that advocates say constitutes an increase over previous years.

Moreover, CBP conducts operations far from border crossings, where they frequently come into contact with U.S. citizens and permanent residents. CBP agents have been accused of engaging in “improper gunplay, racial profiling, excessive roughness, and verbal abuse,” and CBP also makes it difficult for family members and attorneys to locate people they have detained, sometimes for days. The number of travelers whose electronic devices have been searched by CBP officers—often without any evidence of wrongdoing—is on track to more than double this year. The agency can copy data from locked smartphones and computers and then share this information with numerous other federal, state, and local law enforcement agencies.

Is there a way to correct course in the future, given that we’re saddled with an agency that doesn’t answer to Congress, the courts, or the people?

Yes, but what’s needed, for one, is an understanding of the scope of the issue. Many Americans believe that CBP’s “constitution-free” practices only apply to immigrants, but the systemic denial of rights by our nation’s largest law-enforcement agency endangers all of us. If we can’t enter and leave our own country without fear of indefinite detention and deportation, then we aren’t truly free. CBP is already larger than all other federal law-enforcement agencies combined, yet with Trump’s plan to add 5,000 more officers to “secure our borders,” it’s likely that we’ll see more abuse and less transparency.

CBP won’t start following the law until the public demands that all persons in the agency’s  custody—whether citizens or migrants—be treated with the same basic dignity and respect for the rule of law that, at least in word, form the basis of our constitutional democracy. U.S. citizens who are treated poorly by CBP must also submit complaints, and press their elected officials until those complaints are resolved; it can’t just be non-U.S. citizens, in other words, who speak out. Attorneys, moreover, should volunteer to help refugees and others who are often forced to confront CBP officers alone at airports and along borders, and we should all support legislative efforts to guarantee access to counsel in CBP detention.

Our democracy isn’t perfect, but the ideals on which it was founded are worth fighting for. We can only protect those ideals—including due process, the right to counsel, and freedom from unreasonable search and seizure—when we insist that they apply to everyone.


Erika Pinheiro is a New America CA fellow. She leverages technology in the nonprofit sector to serve California’s most vulnerable immigrants.