A Move To Set Boundaries At The Border

National Journal

By Nora Caplan-Bricker

October 3, 2014

A Move To Set Boundaries At The Border

In December 2012, an American citizen trying to cross from Ciudad Juárez, Mexico, into El Paso, Texas, says she was subjected to a humiliating six-hour ordeal. According to the lawsuit she filed with the help of the American Civil Liberties Union, the 54-year-old woman (referred to as "Jane Doe") was selected at the border for a random search and transported to a nearby hospital. There, U.S. Customs and Border Protection agents searched for evidence of drugs by feeding her laxatives and ordering her to defecate in front of them; shackling her to a bed to perform a cavity search; and finally subjecting her to a CT scan. When they told her at last that she was free to go, the hospital handed her a bill for $5,000.

Within 100 miles of the border, CBP officers can legally stop and search any vehicle without a warrant. Courts have said this practice does not violate the Fourth Amendment, though the ACLU and other civil-liberties groups refer to the area adjacent to the border as a "Constitution-free zone." In 2013, the Homeland Security Department, which oversees CBP, released a report finding that the agency's inadequate record-keeping made it impossible to determine how many complaints had been filed against it for excessive use of force. At least 46 people—15 of them U.S. citizens—have been killed by on-duty CBP agents in the last decade, and in all but a few cases, the details are unknown.

This is the backdrop for a bill written by two members of Congress from border districts, Democrat Beto O'Rourke of Texas and Republican Steve Pearce of New Mexico. Last March, the pair introduced the Border Enforcement Accountability, Oversight, and Community Engagement Act. Among other things, it would establish an ombudsman within DHS who would be responsible for investigating allegations of violence and civil-rights violations by CBP, and would create an oversight commission to review the agency's policies and inform the way it spends its $18 billion annual budget. O'Rourke and Pearce also propose to increase the amount of training required for officers and agents, and to establish new protocols under which CBP would be required to report deaths at the border or agents' use of force.

"Given the very broad powers [CBP] enjoys, Steve Pearce and I felt it was important they have very strong oversight and accountability and reporting requirements," O'Rourke tells me. He says he and Pearce "have a very hard time agreeing on broader issues on immigration and so many things that come before Congress." But despite their generally divergent politics, they agree on this.

If you've never heard of Pearce and O'Rourke's legislation, that's probably because it has been sitting in committee since its introduction in March 2013. Given the rancorous state of the national immigration debate, even a small-scale, bipartisan bill on the issue is unlikely to see the light of day anytime soon. (Pearce and O'Rourke also collaborated on a measure that would allow DHS and immigration judges to review some cases where a deportation separated U.S. citizens from a family member—an idea that, likewise, has gone nowhere.)

Outside Congress, the border act has garnered broad support. The National Border Patrol Council—the CBP agents' union—has endorsed it, and human-rights groups such as the ACLU and the Interfaith Immigration Coalition have praised it. "Props to Rep. Beto O'Rourke and Rep. Steve Pearce," blogged Patty Kupfer, of the immigration advocacy group America's Voice, earlier this year. She called the bill "a critical first step in giving border communities more of a say."

O'Rourke, for his part, thinks the bill has only grown more relevant—not just to the situation at the border but also to the national conversation. He hopes that if Republicans give the legislation a second look, the party's fiscal hawks will see the need to hold CBP accountable for how it spends its large budget. And as for Democrats, he says, "you can see in their response to Ferguson really strong concerns about the use of force, and a check and balance on police powers."

This leads O'Rourke to believe that the bill has potential to bridge the partisan divide. "There's a growing coalition of Republicans and Democrats who are concerned about the scope and power of federal law enforcement and the federal government's ability to get involved in our private lives," he says. That coalition "has real concerns about civil-liberties protections. ... All of those things are covered in this bill."

For more information, go to:  www.beverlyhillsimmigrationlaw.com