The Praetorians: An Analysis of U.S. Border Patrol Checkpoints Following Martinez-Fuerte
Abstract: This Note analyzes interior immigration checkpoints following the US Supreme Court’s decision in United States v. Martinez-Fuerte, which upheld the use of checkpoints for the narrow purpose of conducting brief, routine questioning of persons traveling within the United States in order to verify a person’s citizenship and immigration status. The Court’s holding, however, has been broadened by Border Patrol officials to cover other law enforcement functions such as apprehending narcotics and weapons. This broader use of the checkpoints “subverts the rationale of Martinez-Fuerte and turns a legitimate administrative search into a massive violation of the [Constitution].” This Note makes several proposals that could curtail the abusive practices that have taken place at the checkpoints since the Court’s decision in Martinez-Fuerte. First, it recommends that Congress install an ombudsman with the purpose of overseeing border patrol operations at the checkpoints. The ombudsman would be primarily concerned with remedying the current lack of data surrounding activity at the checkpoint and documenting such activity in order for the information to be used to assess the checkpoints from a cost-benefit standpoint. Second, and somewhat an additional function of the ombudsman, this Note recommends that Congress and/or the Department of Homeland Security implement a readily-accessible complaint forum for individuals who suffer constitutional grievances at the checkpoints. Third, this Note recommends that border patrol adopt a monitoring system for regular travelers; namely, a mirror-like SENTRI system that requires extensive background checks and readily apparent ways for border patrol to identify trustworthy individuals at the checkpoints. Finally, this Note recommends that even if Congress or the agencies mentioned in the discussion fail to implement reformative measures to curtail abuse at the checkpoints, the United States Supreme Court should intervene in a future case involving the application of fundamental constitutional rights at the checkpoints in order to clarify whether it intended the checkpoints to effectively operate as crime checkpoints rather than immigration checkpoints. The former has resulted in millions of individuals forgoing the exercise of their constitutional rights within the United States at the mercy of the powerful arm of the government.
Summary (2 min read)
- Following September 11, 2001, there was a “radical restructuring” of some federal agencies whose missions related to national security.
- 27 Furthermore, the HSA authorized the president to modify the departmental structure; the president subsequently did so, further dividing the immigration functions of the DHS into three immigration agencies: two enforcement bureaus and one service bureau.
- 28 The enforcement bureaus are the US Immigration and Customs Enforcement (“ICE”) and CBP.
- 31 CBP, on the other hand, conducts border inspections at various locations, including land borders, airports, seaports, and interior checkpoints.
A. Checkpoint Procedures 101
- CBP plays a crucial role in curtailing illegal activity within the United States by operating interior checkpoints in areas reasonably located away from the international border.
- 35 Since the United States shares a border with Mexico that is almost 2000 miles long, and much of the border area is “uninhabited desert or thinly populated arid land,” 36 the checkpoints provide support in monitoring secondary roads CBP determines are likely to be used by undocumented immigrants or narcotics smugglers.
- The following section explores CBP’s authority to operate checkpoints within the United States and how the Supreme Court blessed this authority with its holding in Martinez-Fuerte.
A. Proving Citizenship and the “Mexican Ancestry” Criterion
- While the majority of US Citizens carry their driver’s license on their person, this form of identification may be deemed insufficient to prove citizenship at checkpoints.
- Some argue that the “Mexican ancestry” criterion is essential in pursuing law enforcement goals because CBP agents “have [a] very short period of time to make an assessment as to whether further inquiry needs to be given.”.
- In multiple recent law enforcement contexts, questions have been raised about the legality of law enforcement procedures that either explicitly or implicitly rely on racial profiling.
B. Refusing to Answer Non-Immigration Questions
- In Martinez-Fuerte and its progeny, the Court has failed to address whether a motorist may refuse to answer a CBP agent’s questions— primarily those that go beyond the scope of a routine immigration inquiry.
- One federal circuit has held that checkpoint stops ought to be “limited to the justifying programmatic purpose of the stop: determining the citizenship status of persons passing through the checkpoint.”.
- Washington University Open Scholarship held, for different reasons, that a referral to secondary inspection was valid.
C. Recording Individual Checkpoint Data
- //openscholarship.wustl.edu/law_lawreview/vol93/iss3/9 checkpoints to primarily seize narcotics, 120 which, according to the statistics, has overwhelmingly been CBP’s greatest success, also known as https.
- See Bill Ong Hing, Border Patrol Abuse: Evaluating Complaint Procedures Available to Victims, 9 GEO.
A. Judicial Relief
- There are two types of judicial remedies: equitable relief and damages.
- Thus, assuming federal judges err on the side of not granting injunctive relief, individuals are more likely to successfully receive relief by pursuing remedies under Bivens and/or the Federal Torts Claims Act (“FTCA”).
- Prior to Bivens, “[n]o federal statute authorize[d] federal courts to hear suits or give relief against federal officers who violate[d] the Constitution of the United States.”.
B. Qualified Immunity and Other Barriers to Relief
- Both Bivens relief and FTCA relief have shortcomings.
- For an enlightening analysis of the good faith immunity doctrine at the time of its enactment, see Saylor, supra note 146, at 292–98 (noting that “good faith” could apply based on an official’s reliance on operating procedures, departmental procedures, supervisory instructions, and regulations).
- So while the majority in Martinez-Fuerte dismissed Justice Brennan’s concerns by noting that the “courts would not be powerless to prevent the misuse of checkpoints to harass those of Mexican ancestry,” 198 individuals do, in fact, face substantial barriers in seeking relief following an improper checkpoint stop.
A. CBP Ombudsman Proposal
- House Bill 4303 proposed creating an Ombudsman to monitor checkpoint operations.
- Clearly then, one solution is for the Ombudsman to request and monitor how much is being spent at each checkpoint by sector to determine costs.
- In addition to its reporting role, the Ombudsman can also serve an advisory role in assuring that CBP complies with the law.
B. CBP Complaint Forum Proposal
- House Bill 4303 also provided protection to persons who are reluctant to file a complaint for fear of retaliatory actions by law enforcement officials.
- Any implemented complaint procedure should be externalized, not further internalized by CBP’s current bureaucracy.
C. Community Sticker Program Proposal
- In addition to the previously discussed proposals set forth in House Bill 4303, several supplemental proposals may address issues with the current procedures at checkpoints following Martinez-Fuerte.
- If the registrant initially registered his or her family of six, only six people could be in the car when arriving at the checkpoint.
- Many Americans are unaware of the militaristic procedures that occur every day at CBP checkpoints within the United States.
- In 1976, checkpoints were designed to solely curtail the flow of undocumented immigration from Mexico, but now counterterrorism and drug-trafficking prevention are cognizable law enforcement functions.
- Https://openscholarship.wustl.edu/law_lawreview/vol93/iss3/9 ought to be scrutinized in order to preserve fundamental constitutional rights where they presumably are applied in the highest regard: within the United States.
- My sincerest gratitude goes out to my colleagues at the Washington University Law Review.
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Cites background from "The Praetorians: An Analysis of U.S..."
...– Mexico border region, are exempt from Fourth Amendment protections as long as the roadblock is permanent and the stopping activity at the roadblock is routine rather than sporadic (Osete, 2016)....
...…1976), the Court ruled that checkpoints to scrutinize drivers for their immigration status, in the U.S.– Mexico border region, are exempt from Fourth Amendment protections as long as the roadblock is permanent and the stopping activity at the roadblock is routine rather than sporadic (Osete, 2016)....
Cites background from "The Praetorians: An Analysis of U.S..."
...For a review of changes to POEs and checkpoints, see Migration Policy Institute (2013) and Osete (2016)....
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Q1. What have the authors contributed in "The praetorians: an analysis of u.s. border patrol checkpoints following martinez-fuerte" ?
For example, this paper describes a case in which an undocumented immigrant needs a gallon of milk from a grocery store and has to cross an immigration checkpoint to do so.