Law and Disorder
If you’re packing up and leaving the place you’ve lived in your entire life to travel the two-thousand-odd miles and make an asylum claim at the U.S. border, one likely motivation is your belief that the authorities here—the people who have the state-sanctioned power to control your fate—are different in fundamental ways from those you’re leaving behind. The police in San Pedro Sula or San Salvador may have been indifferent or worse, but in the United States, law enforcement obeys the laws. Increasingly, you’d be wrong.
The last three years have brought a flurry of changes to federal immigration policy, all of it the product of executive rule-making and regulatory shifts as Congress flails to so much as keep the government funded. A staggering amount of these changes are now the subject of litigation over their legality. Some, like the first two versions of the Trump administration’s travel ban, have been struck down; others, like the third, slightly modified travel ban, have been given the judicial OK. (Last week, six additional nations were added to the ban; no legal challenges have arisen yet.) Happening in tandem but mostly escaping public notice is a darker shift: a massive federal immigration enforcement machinery that has increasingly seen fit to grant itself almost unlimited authority over the lives of the people it targets, above and beyond already expansive powers under the law. It has done so under the dual assumptions that the people it victimizes will largely be too vulnerable, isolated, or afraid to fight back; and that even in cases where their wrongdoing is confronted, the courts and systems of oversight in place to constrain them will either fail or actively refuse to step in, each time clearing a path to push the envelope a little bit farther, let the mask of law and order slip a little bit lower. So far, these assumptions have mostly held.
Consider the use of dental X-rays to determine the age of people being held in immigration custody. By law, minors have enhanced rights in this context: if they’re unaccompanied and detained, they must quickly be placed in the relatively non-restrictive care of the Department of Health and Human Services’ (HHS) Office of Refugee Resettlement, as opposed to ICE detention. Families with minors have to be released after twenty days in custody. When seeking asylum, unaccompanied minors are exempt from restrictions on other applicants, such as a one-year deadline from entry to application, and the government is required to help them secure a lawyer “to the greatest extent practicable.” All of this makes determining the exact age of potential minors detained both at the border and in the interior of the country hugely consequential. On this process, the law is unambiguous: the secretaries of HHS and Homeland Security (DHS) “shall develop procedures to make a prompt determination of the age of an alien . . . At a minimum, these procedures shall take into account multiple forms of evidence, including the non-exclusive use of radiographs” (emphasis mine).
A massive federal immigration enforcement machinery has increasingly seen fit to grant itself almost unlimited authority over the lives of the people it targets.
This language was added over a decade ago, following two consecutive House Committee on Appropriations reports on Homeland Security funding that voiced concern over minors being subjected to unreliable bone and dental X-rays—and being sent to adult jails as a result. The second report, from September 2008, notes that DHS completely ignored the committee’s directives from the prior year. “[T]he Department has not ceased its reliance on bone and dental forensics for child age determination . . . This practice has led to the erroneous placement of children in facilities commingled with adults who may seek to prey upon young children. The Committee directs the Department to cease immediately its reliance on fallible forensic evidence as determinative of a child’s age, and provides no funding for this activity.”
A report from Homeland Security’s own Inspector General in 2009 found that ICE had pretty laissez-faire procedures around age determinations, and wasn’t even tracking how often it used dental X-rays for this purpose, nor how often they turned out to be wrong. The IG’s investigators admitted that these tests were unreliable, writing that “radiographs of a person’s bones or teeth, however, cannot produce a specific age due to a range of factors affecting an individual’s growth.” Among these factors were “abuse and torture.” So, this practice was ordered shut down by a Congressional committee (twice), investigated and discouraged by the Homeland Security Inspector General, and then made explicitly illegal under federal statute. What changed?
Turns out, not much.
In May 2018, Reveal published an investigation finding that not only had ICE in some cases continued to rely primarily on dental X-rays to determine the ages of migrants in immigration custody, but that they had even used these X-rays to supersede much more concrete evidence of age, like birth certificates, in flagrant and obvious violation of the law. Subsequent reporting has confirmed that the practice was still in effect as of late 2018.
It’s not just dental X-rays. In more than a dozen instances, Border Patrol agents have handed asylum seekers in the Migrant Protection Protocols nonexistent court dates in order to return them to Mexico, even after they’ve either already won asylum or had their cases terminated without a decision. Children in Border Patrol custody remain there far longer than the law permits. And two weeks ago, many people were left dismayed as CBP apparently decided to ignore a federal judge’s order to stay the removal of an Iranian student whose visa was unilaterally cancelled by CBP officers at the Boston Logan International Airport. He was deported about thirty minutes after the stay was granted. That deportation took place almost exactly three years after the first travel ban was issued, under which CBP widely disregarded federal court orders to halt its enforcement.
These are not flukes, nor are they unintentional. These enormous federal bureaucracies are deliberately kicking the tires of accountability in the hope that, slowly but surely, their formal authority will reach the limits to which their informal authority has been pushed. They know it can be done because they’ve done it before.
You may have heard of the so-called hundred-mile border zone, in which CBP has enhanced authority to perform warrantless stops and cursory searches based only on “reasonable grounds,” a lower standard than probable cause that can amount to outright profiling. It should not be a surprise that this standard of enforcement preceded its legality, not the other way around. The early history of the Border Patrol was one of roguish men patrolling wantonly through nominally border-adjacent territory, stopping people at will and often on a racial basis. Despite some limited pushback, the Border Patrol got Congress and the courts to codify their extralegal conduct. In 1952, Congress approved language that gave officers authority to “board and search for aliens any vessel . . . and any railway car, aircraft, conveyance, or vehicle” within a “reasonable distance from any external boundary.” Within twenty-five miles, they could “have access to private lands, but not dwellings, for the purpose of patrolling the border.”
It was later decided by the executive branch itself, through regulation, that this undefined “reasonable distance” constituted a hundred air miles (slightly more than a hundred miles on land), a calculation that has since been upheld by the courts. In a 1975 decision, the Supreme Court agreed that “trained officers can recognize the characteristic appearance of persons who live in Mexico, relying on such factors as the mode of dress and haircut,” and that such superficial—and heavily racialized—factors could be used as part of the basis for a stop. In 1976, the Court ruled that CBP’s indiscriminate internal checkpoints, dozens of miles from the border, did not violate the Fourth Amendment.
Even in more recent times, when agents have managed to violate the law so blatantly that they trigger a stab at accountability, the courts have sometimes stepped in to prevent it. A panel of the Fourth Circuit Court of Appeals decided last year that ICE agents cannot be sued by people whose rights they’re accused of violating because they’re not working in the criminal law context where most law enforcement occurs; the only avenue to contest their actions is immigration court. Given that U.S. citizens by definition cannot have proceedings in immigration court, the ruling de facto stated that there’s no venue for U.S. citizens to hold particular agents liable, and only noncitizens already in removal processes can do so. Even then, their chances are very slim.
The Supreme Court is currently considering whether an agent who shot and killed a teenager on the Mexican side of the southern border can be sued by the victim’s family after the Fifth Circuit ruled that, as a noncitizen just outside U.S. soil, the teen was not constitutionally protected. When attorneys tried to hold CBP responsible for deporting the Iranian student in the above-mentioned case, a federal judge dismissed the case as moot because the student had already been deported, saying, “I don’t think they’re going to listen to me.” In doing so, he made explicit what CBP’s actions had already said implicitly: his orders had no power here.
These enormous federal bureaucracies are deliberately kicking the tires of accountability in the hope that, slowly but surely, their formal authority will reach the limits to which their informal authority has been pushed.
A big part of the reason for this lack of accountability is that the notion of federal government agents contemptuous of the limits of the law, who view their mandate as one to be accomplished by any means necessary, is repugnant to an ideal of American exceptionalism deeply ingrained into the political establishment. To acknowledge that this is so would be to explode this sacred conviction and reveal its hollow core. It’s much easier to rationalize, to accept the premise that these are isolated mistakes, that the agents of ICE and CBP—the latter being far and away the largest federal law enforcement agency by headcount—need to be allowed to “do their jobs” for the good of national security, even if they sometimes stretch the boundaries of their jurisdiction. If these agents say they need certain authorities, it must be because they really do need them. And so the border moves ever inward; the suspicions of outsiderness, of being a threat regardless of your citizenship, grow more pervasive; the tools to surveil and intimidate and arrest and remove get more sophisticated and less constrained; and the enforcement more detached from any specific mandate, until what exactly is being enforced becomes a secondary concern to the raw exercise of power.
These agencies are relentlessly self-propagating, and their slide toward unchecked control can and has occurred under administrations of every stripe. Yet, at this inflection point, when the upper echelon of executive authority is practically salivating at the prospect of finally doing away with the pretense of due process, those remaining powers purportedly committed to civil liberties and democratic rule should ask themselves what would more harshly shatter their vision of what the United States is supposed to be. Will the country accept that its armed bureaucracies perhaps aren’t so special and need to be reined in, or will it to one day wake up to find that this choice is no longer theirs to make?