Newly Released FOIA Documents Shed Light on Border Patrol’s Seemingly Limitless Authority

When a Border Patrol agent is contemplating pulling someone over, they have a checklist of possible behaviors to look out for. They can determine “whether the vehicle or its load looks unusual in some way,” or “whether the passengers appeared dirty.” If those descriptions don’t apply, they can assess “whether the persons inside the vehicle avoid looking at the agent,” or conversely, “whether the persons inside the vehicle are paying undue attention to the agent’s presence.” And if those don’t apply, they can simply determine that the car is in an area nearby the border and pull it over on that basis alone.

The Border Patrol’s authority doesn’t only apply to remote stretches of the border. Agents also deploy in cities, searching for people they believe to have illegally entered the country; board buses and ask passengers to prove they are in the country legally; and conscript civilians to assist them with law enforcement activities under threat of arrest.

These details and others were revealed in more than 1,000 pages of previously unseen Customs and Border Protection training documents, which were obtained by the American Civil Liberties Union after a four-year legal battle and shared exclusively with The Intercept. The documents were finally released to the ACLU’s Border Litigation Project this past August in response to a 2014 Freedom of Information Act request that focused on the policies of Border Patrol’s “roving patrols” — units that operate outside of ports of entry and checkpoints, often venturing far into the country’s interior. These roving patrols can question, detain, and arrest individuals they suspect of having illegally crossed the border or having smuggled drugs or other contraband into the country.

The documents include a copy of the agency’s 2012 Enforcement Law Course, which CBP has described in court filings as advice “on the legal authority of CBP’s law enforcement personnel and issues they would confront in investigations and prosecutions.” (CBP declined to comment on whether the ELC has been updated since 2012 and did not respond to further requests for comment.) In addition to the Enforcement Law Course is a series of PowerPoint presentations from November 2017 aimed at helping Border Patrol trainees digest the legalistic language of the ELC.

During the course of the FOIA litigation, CBP argued that releasing the documents would be a violation of attorney-client privilege between CBP’s legal branch and its officers in the field. A federal judge dismissed that claim last year, after finding that the Enforcement Law Course did not contain confidential information flowing from client to attorney. Despite this finding, parts of the course, including the entire section related to the use of surveillance, have been redacted. A judge also allowed a chapter on instructions regarding courtroom testimony to be redacted, finding that it conveyed litigation strategy.

What’s included in the documents, however, is a portrait of an agency that acknowledges that citizens and noncitizens alike are covered by the Fourth Amendment, which protects against unreasonable searches and seizures, while also instructing officers on expansive ways to circumvent it.

“One thing the documents that we obtained do a good job of highlighting is how arbitrary and often nonsensical the agency’s decision about whether something rises to reasonable suspicion to justify a stop is,” said Mitra Ebadolahi, an attorney with the Border Litigation Project who litigated the FOIA request.

As part of the legal advice for roving patrol officers, CBP lists 21 possible “articulable facts” that can serve as a basis for stopping a car — demonstrating a broad interpretation of what constitutes reasonable suspicion as justification for Border Patrol to pull over anyone within 100 miles of the border. Many of these articulable facts stem from cherry-picked court decisions that have granted Border Patrol wide latitude in making stops.

(1) whether the vehicle is close to the border;
(2) whether the vehicle is on a known smuggling route;
(3) whether the vehicle’s presence is inconsistent with the local traffic patterns;
(4) whether the vehicle could have been trying to avoid a checkpoint;
(5) whether the vehicle appears to be heavily laden;
(6) whether the vehicle is from out of the area;
(7) whether the vehicle or its load looks unusual in some way;
(8) whether the vehicle is of a sort often favored by smugglers;
(9) whether the vehicle appears to have been altered or modified;
(10) whether the cargo area in the vehicle is covered;
(11) the time of day or night at which the vehicle is spotted, and whether it corresponds to a shift change;
(12) whether the vehicle is being driven in an erratic or unsafe manner;
(13) whether the vehicle appears to be traveling in tandem with another vehicle;
(14) whether the vehicle looks as if it has recently been driven off road;
(15) whether the persons inside the vehicle avoid looking at the agent;
(16) whether the persons inside the vehicle are paying undue attention to the agent’s presence;
(17) whether the persons in the vehicle tried to avoid being seen or exhibited other unusual behavior;
(18) whether the driver slowed down after seeing the agent;
(19) whether the passengers appeared dirty;
(20) whether there is intelligence available that suggests that smuggling will occur in the area or by a specific vehicle; and
(21) whether the vehicle is coming from an area of a sensor alert.

Outside of the border zone, law enforcement in the United States has been held to a standard set by the Supreme Court’s 1968 ruling in Terry V. Ohio, which found that stops by police officers must be based on a reasonable suspicion that someone has just committed, is committing, or is about to commit a crime. The list of possible justifications presented by the ELC is so broad as to suggest that simply being in a car near the border is suspicious enough to warrant a stop.

While Customs and Border Protection claims that a 1953 Justice Department regulation extends its jurisdiction to within 100 air miles of the border (which covers nine of the country’s 10 largest cities and two-thirds of its population), the ELC also provides a legal framework for a 25-mile zone around the border where Border Patrol believes its agents are allowed to patrol private lands and question anyone they encounter (including within border-adjacent cities like New York, Miami, and San Diego). According to the ELC, Border Patrol agents are not allowed to enter private dwellings or infringe upon an individual’s “reasonable expectation of privacy,” when a citizen believes they’re not putting something in the public view and a law enforcement agency would be required to obtain a warrant to conduct a search.  What’s less clear is how the agency’s near-constant surveillance of the area surrounding the border serves to narrow this reasonable expectation of privacy.

The entire chapter on electronic surveillance has been redacted in the ELC, and the unredacted sections, as well as the PowerPoint presentations, paint a complicated portrait of scenarios in which surveillance technology, when used by CBP, would constitute a search. The ELC points to Supreme Court decisions on GPS devices and thermal imagers as examples of cases in which a warrant would be required. Meanwhile, when it comes to aircraft overflights, “If the aircraft is operated lawfully and in airspace where such flights are routine, no intrusion by the aircraft into a reasonable expectation of privacy occurs,” the ELC states.

According to Sarah St.Vincent, a Human Rights Watch researcher on surveillance and domestic law enforcement who reviewed the ELC, this secrecy and lack of clarity about CBP’s surveillance operations is a central feature of how the agency operates.

“This is a form the surveillance state takes in the United States,” St.Vincent told The Intercept. “It takes place under this veneer of law, such that it looks legitimate and reasoned, but actually there are serious questions to be asked, both about practices and whether the case law or the laws the government is citing in support of what it wants to do reflects what Congress or the courts actually said.”

Getting to the bottom of how CBP uses its surveillance authority has been difficult for attorneys and advocates litigating these issues, as parts of criminal cases that might rely heavily on surveillance can be hidden from view as part of a process called “parallel construction,” which creates a separate evidentiary basis for a criminal investigation in order to hide how the investigation began.

“We’ve seen, in the parallel construction context, that they will fixate on a particular Supreme Court case that might be outdated and use that as a legal justification for what they want to do and ignore that there may be some rulings that might be contradictory to what they want to do,” St.Vincent explained. “There is a broader problem with the government cherry-picking cases and justifying things to itself that, when I sit down and look at these things as an attorney, it doesn’t really hold up. Not in the categorical way they say it does.”

A PowerPoint slide from a 2017 presentation explaining graduated levels of suspicion required to conduct searches and seizures.

According to the documents, the border itself extends far beyond even the massive 100-mile zone to any city with an international airport where Border Patrol can prove that a nexus has occurred (that someone has crossed the border recently). According to the ELC, “Transportation checks conducted at key hubs complement linewatch [agents tasked with watching the border between ports of entry], roving patrol and immigration checkpoint operations by closing off another means of escape from the border area.”

Border Patrol also believes it has broad authority to check the identity of individuals on buses or trains within the 100-mile border zone, as recent headlines can attest. If Border Patrol obtains permission, as it has from bus companies like Greyhound, agents are allowed to board the bus and ask for identification. The ELC advises that agents are not required to inform travelers that they are allowed to refuse to show identification or that refusal will not be used as reasonable suspicion to undertake a search. “The Fourth Amendment does not require police officers to advise bus passengers of their right not to cooperate and to refuse consent to searches,” the ELC states.

“The judiciary has to be a line of defense for the Constitution and really make the Fourth Amendment protections meaningful by interpreting them in a way that doesn’t permit an agency such as Border Patrol to basically make up whatever it wants and have that satisfy the standard,” said the ACLU’s Ebadolahi. “That’s one of the things that these documents really throw into relief. It’s really disturbing.”

A bill introduced this past spring by Sen. Kirsten Gillibrand, D-N.Y., would require Border Patrol agents to report every instance they stop and question someone about their citizenship status. Right now, agents need only document the arrests they’ve made, making patterns of racial profiling or persistent harassment of people who live along the border impossible to track.

The ELC reveals other, less-reported aspects of CBP enforcement, including the existence of a “city patrol,” whose purpose is “to locate illegal aliens within cities close to the international border.” In the section describing city patrol, there is no requirement for suspicion that a recent border crossing has taken place; this unit’s mandate is simply to “locate aliens who are subject to removal from the United States.” The ELC instructs agents only to make an arrest without a warrant if they suspect the individual has committed a federal felony, including presenting forged documents. Still, city patrol’s mandate overlaps considerably with the interior enforcement normally delegated to U.S. Immigration and Customs Enforcement.

In addition to the existence of city patrol, which seemingly widens the already vast jurisdiction of CBP’s roving patrols, the ELC reveals Border Patrol’s belief in its ability to demand assistance from any civilian, and, if they refuse, the option to charge them with a misdemeanor or issue a fine of up to $1,000. As recently as 2012, Border Patrol has used this ability to compel hospital doctors to assist them with cavity searches for contraband. This eventually led to a settlement in 2014 between CBP and the ACLU that included a clarification to hospitals along the border that doctors need not assist unless a warrant has been issued for the cavity search or an individual has consented to being searched.

The PowerPoint presentations also provide some do’s and don’ts for Border Patrol agents, including advice that they shouldn’t use “slang” in official reports. One example of this “slang” is an archaic slur that harkens back to one of Border Patrol’s earliest large-scale enforcement actions, Operation Wetback in 1954.

A PowerPoint slide instructing Border Patrol trainees to avoid the use of slurs or slang while writing arrest reports.

After four years of litigation to try to get a peek into what legal justification CBP is using to create a state of constant surveillance near the border, and as a mandate for ever-increasing incursions into the country’s interior, Ebadolahi still feels that the largest federal law enforcement agency is shrouded in almost complete mystery.

“I think it would be really helpful to have a sense of how CBP allocates the resources of what it does have, because it’s billions of dollars, and they’re constantly saying they don’t have resources. We’re seeing this now with the asylum-seekers at the port of entry, where the agency is saying it’s at max capacity,” Ebadolahi told The Intercept.

In December, the Supreme Court sided with a ruling by a District Court judge in California and refused to let the Trump administration enforce a new set of rules that aimed to bar people who cross between ports of entry from applying for asylum. Even without the ban in place, however, CBP has drastically reduced the amount of people it allows to cross the border at ports of entry in order to apply for asylum. Trapped in unfamiliar cities, asylum-seekers sometimes make the dangerous trek through the desert and across the border only after waiting weeks and even months for CBP to admit them at a port of entry. CBP claims that it simply does not have the capacity to process the thousands of asylum-seekers who present at ports of entry every month. This presents a contradiction to lawyers like Ebadolahi: Untold millions are being set aside for security and surveillance, and seemingly very little for addressing possibly legitimate asylum claims.

“How are they allocating the resources they have?” Ebadolahi continued. “Our taxpayers are funding this, and it’s not actually increasing anyone’s security. It’s actually a huge risk to living in a free society.”