ACLU Lawyer Says Border Patrol's Random Stops Are An 'Intrusion On Personal Liberties'

Jul 9, 2018

Over the past several weeks, agents from U.S. Customs and Border Protection have carried out random stops of people to question them about their citizenship, miles away from the nearest border.

On June 21, two Bangor Daily News reporters, recorded audio from a Maine checkpoint on I-95 and posted it on the paper's website.

The policy isn't new. It's based on rules put in place in 1952  that allow the agency to randomly stop people within 100 miles of any U.S. "external boundary."

Critics have claimed that use of the checks has increased during the Trump administration, although the CBP doesn't report those numbers.

What is new, however, is the number of people catching the stops on video and posting them on social media. And in many cases, the videos reveal confusion about what the rules are.

The ACLU, a major force of opposition to the stops, has also been educating the public about their rights in these situations.

Emma Bond is a staff attorney with the ACLU of Maine, which publishes a "Know Your Rights" brochure for people who are stopped. She spoke with Nora Flaherty on Maine Things Considered.

Nora Flaherty: “Emma, these kinds of stops – within this 100 mile radius, but some distance from the border – are making the news more and more. But they're not new. What's the history of this rule, and do you have a sense of whether it's being used more now than it has been in the past?”

Emma Bond: “This regulation dates back to the early 1950s when CBP (U.S. Customs and Border Protection) was a vastly different agency. Since then it has increased in size, number of agents and budget. And so the intrusion on personal liberties is just that much greater. 

This map, from the ACLU, illustrates the 100-mile border zone. Bond says "it is not within a reasonable distance of the border to say that it includes all of Maine, most of New England and two-thirds of the population of this country."
Credit ACLU

And frankly this regulation never made sense because it is not within a reasonable distance of the border to say that it includes all of Maine, most of New England and two-thirds of the population of this country. And we do have reports that immigration enforcement in this 100-mile zone has been on the increase.”

Flaherty: “Your organization publishes a “Know Your Rights” brochure for people who might be stopped. Can you tell me what's on that brochure?”

Bond: “Sure. This is a complicated area of law, but if you find yourself stopped by a CBP agent there are three basic things you should know. First you can tell them that you are invoking your right to remain silent, and then remain silent. Second you can tell them ‘I do not consent to a search.’ And third you can say as many times as you want you can ask: Am I free to leave? And once the officer says you are, you should leave. Aside from your immediate engagement with the officer, you can record your engagement with the officer and post it on social media. You can speak out in your community against these practices.”

Flaherty: “What are some of the obstacles to people in immigrant communities to getting this information, and then to doing the things that you were talking about here?”

Bond: “One of the biggest obstacles in immigrant communities is this climate of fear that has been engendered by this administration, and it's important to remember that everyone in the United States has constitutional rights, and that surely includes immigrant communities. There are some special rules that apply to immigrants regarding documentation to carry and when you have to show that to a CBP officer, and if anybody has questions about that they should consult an immigration lawyer.

“Another obstacle is the many different languages that we have in our community. So we're trying to get our ‘Know Your Rights’ documents out in as many languages as possible. And it's great to see that in some bus stations, they have posted in English and Spanish the ‘Know Your Rights’ materials, so people are bringing – circulating those around to get the information out there, and we'd love to see more of that. We'd love to see more bus companies adopt posting those kinds of information.”

Flaherty: “What is the ACLU doing now on this issue both in Maine and nationally?”

Bond: “In Maine we have two lawsuits over federal records violations by CBP and the Department of Homeland Security and Immigration and Customs Enforcement – ICE. Those lawsuits are ongoing. In one of the lawsuits, we asked for information regarding the bus checks. You may have heard about CBP agents stopping people who are boarding buses. So we're asking for information about that.

“And the other one is a broader question about immigration enforcement in the state of Maine. People have the right to know what the government is doing in their name. And so we are suing to find out.”

Flaherty “There are some people who would say that, you know, our borders need to be safe, and they need – these kinds of checks are necessary to keep them safe. How do you respond to that?”

Bond: “In any balancing analysis, people's constitutional rights are paramount. People's rights to be free from unreasonable search and seizure, people's rights to be safe in their community. So those sorts of things should not be balanced away.”

Flaherty: Emma Bond is a staff attorney with the ACLU of Maine. Emma thank you very much.

Bond: Thank you, Nora.

This story was originally published July 6, 2018 at 5:45 p.m. ET.