'Papers, Please,' Northern Edition

The New York Times reports that Border Patrol agents routinely board buses and trains near the Canadian border (but not on routes that actually cross it) to grill passengers about their native countries and immigration status. Unlike the inquiries mandated by Arizona's controversial immigration law, which apply to people whom police come across while investigating other offenses, these approaches do not require a legal pretext. Agents question whoever attracts their attention, while the passengers are theoretically free to remain silent during what the government calls a "consensual and nonintrusive conversation." But how many people, upon being awakened on a train or bus by an armed, uniformed government agent shining a flashlight into their eyes (yes, that really happens), will perceive the encounter as voluntary? And if you say you are a naturalized U.S. citizen, but you do not have an ID to prove it, is that the end of the "conversation"? Unlikely, although citizens (as opposed to legal residents) have no obligation to carry such documentation.

The argument that these agents are policing the border seems dubious:

For some, the patrol's practices evoke the same fears as a new immigration law in Arizona—that anyone, anytime, can be interrogated without cause.

The federal government is authorized to do just that at places where people enter and leave the country, and at a "reasonable distance" from the border. But as the patrol expands and tries to raise falling arrest numbers, critics say, the concept of the border is becoming more fluid, eroding Constitutional limits on search and seizure. And unlike Arizona's law, the change is happening without public debate....

Legal scholars say the government's border authority, which extends to fixed checkpoints intercepting cross-border traffic, cannot be broadly applied to roving patrols in a swath of territory. But such authority is not needed to ask questions if people can refuse to answer....

Asked if agents could question people in Times Square, which like most of the nation's population centers is within 100 miles of international waters, [the Border Patrol agent in charge of the Rochester, New York, station] replied, "Technically, we can, but we don't." He added, "Our job is strictly cross-border."

Lawyers challenging the stops in several deportation cases questioned the rationale that they were aimed at border traffic. Government data obtained in litigation shows that at least three-quarters of those arrested since 2006 had been in the country more than a year.

These ostensibly voluntary Border Patrol approaches are reminiscent of the bus searches, aimed at finding drugs, that the Supreme Court has approved because they are officially consensual. In both cases the context is implicitly coercive, but the targets are supposed to know they have a right not to cooperate.

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  • Almanian||

    Well, as long as the perps people have a "right not to cooperate", and assuming they've done nothing wrong, there's no problem.

    Right?

    Right?

  • Shannon Love||

    This is one of the reasons that the teeth gnashing over the Arizona law rang false. Border patrol agents have always been able to take people into custody on the mere suspicion that they were illegal. Like custom officials, their powers are surprisingly broad and draconian.

    In the Southwest, it has long been the practice to assume that anyone wandering around along the border without US ID is illegal and to run them in. I had a friend whose father was a ranch hand. He got busted several times because he didn't like to take his wallet out on his horse because if you drop your wallet out there you never find it.

    The border agents patrol an area 20+ miles deep along a 2,000 mile long border. That's an area bigger than one of the small states. In that patrol zone, they are pretty much a law unto their own.

    By contrast, Arizona running an immigration check on someone already under suspicion for something else is relatively minor.

  • ||

    By contrast, Arizona running an immigration check on someone already under suspicion for something else is relatively minor.

    Indeed. Too bad Arizona went much farther than that by enacting its own state criminal statute on top as well as legislating the explicit power for any state resident to sue authorities for not running an immigration check on someone already under suspicion for something else.

  • Shannon Love||

    What's so unusual about that? We've been using the same mechanism in all kinds of law for decades. When you hear about a private group suing the EPA, the Department of Labor or some state government on a real or imagined civil rights issue, where did you think the legal authority to file suit against the sovereign power came from?

    It's just a long used mechanism employed when you don't trust government actors to carry out the law so you create a mechanism by which the courts can force compliance.

    If you are going to have a law, individual government units shouldn't be able to pick and choose whether they will enforce it not.

  • ||

    At least one Arizona law professor thinks it is unusual...

    That kind of explicit permission to sue the government for not enforcing the law is almost unheard of, according to Mark Miller, a professor at the University of Arizona Law School. "This kind of ... private right of action for an executive decision," -- that is, a law enforcement policy adopted by the government -- "is to my knowledge completely unknown, and to my mind, stunning," Miller told TPMmuckraker.
  • ||

    Wait, make that four Arizona law professors...

    SB 1070 includes two striking provisions previously unknown in United States law. The first is the provision in 11-1051(A), which provides:

    No official or agency of this state or a county, city, town or other political subdivision of this state may limit or restrict the enforcement of federal immigration laws to less than the full extent permitted by federal law.

    The second is the citizen suit provision in 11-1051(H), which provides:

    A person who is a legal resident of this state may bring an action in superior court to challenge any official or agency of this state or a county, city, town or other political subdivision of this state that adopts or implements a policy that limits or restricts the enforcement of federal immigration laws, including 8 United States Codes Sections 1373 and 1644, to less than the full extent permitted by federal law.
  • Shannon Love||

    Ah, arguments from authority.

    This type of waving might be unusual as applied to the police by state law but the general idea that governments can wave sovereign immunity in some cases definitely isn't.

    Perhaps you should ask your law professors how the Sierra club and the NAACP can routinely sus local governments. Honestly, you don't have to grovel at some professors feet when a little common sense will tell you the truth.

  • ||

    Arguments from authority? Are you kidding me? That's an argument from expertise. What the hell are you doing, arguing from ignorance?

    But very well. I'll try to argue without citing people who know far more about this than either you or I...

    Anyone can sue anyone for anything. The court will decide standing, particularly when the defendant might claim sovereign immunity.

    Honestly, you don't have to grovel at some professors feet when a little common sense will tell you the truth.

    Please cite specific state legislation that is anywhere close to the Arizona legislation in the powers explicitly enacted to sue the government.

  • ||

    Right, as if we don't gnash our teeth even more over ICE and the border patrol. But unfortunately there's almost nothing that we can do about them (thanks Supreme Court!). If you've ever been involved with a foreigner, or you are an immigrant, you will hate the BP/ICE fuckers with a passion.

  • MWG||

    "Like custom officials, their powers are surprisingly broad and draconian."

    So we should give the states "broad and draconian" powers as well?

  • ||

    "So we should give the states "broad and draconian" powers as well?"

    They already have them, and always have.

  • MWG||

    Touche.

  • Irresponsible Hater||

    I'm pretty sure La Migra does this all the time on Amtrak trains. I've seen it happen a couple times going from San Diego to Los Angeles, but that was years ago. Agent walks down the aisle, and sits next to the young brown males and starts asking them questions in Spanish. Questions like "Do you have papers?" I wish they could just tell them to fuck off, but it seems a given that they're getting hauled in one way or the other...

  • Paul||

    See my post below. It's within 100miles of the border. We're all potentially undocumented within 100 miles of the border.

  • ||

    I had a BP officer ask me for my ID on a San Joaquin Amtrak just north of Fresno about a month ago. He had asked every single brown person on the train for their ID and I was telling my kids how it was Unconstitutional for him to do so, and that the people should refuse. He heard me and came over to ask for my (and my kids') ID's. I remember it like yesterday:

    "Could I see your and your children's ID's, sir?"
    "They're in my suitcase and I won't be getting up because I don't want to leave my children unattended."
    "Well, I understand what you are saying, but I do have a right to ask."
    "You sure do, but I also have a right to refuse."
    "You're setting a fine example for your kids. We're here to make you safer."
    "Thank you for that. Have a nice day."

    He was truly pissed off, but I at least taught my kids a lesson in resistance to bogus authority. I hope at the ages of 10 and 12 they will hold on to this lesson.

  • People Power Hour||

    Thank Gawd(tm) for you, sir!

  • Fire Tiger||

    I at least taught my kids a lesson in resistance to bogus authority
    Just wait until they are teenagers. I had to pull out the Bill of Right to prove to me my teenager that Freedom of Speech did not give him the right to call his mother names.

  • Paul||

    The federal government is authorized to do just that at places where people enter and leave the country, and at a "reasonable distance" from the border.

    100 miles, to be precise. Meaning practically every major city-- or at minimum, every major city worth living in (yeah, I'm talking to you Omaha) you can be stopped randomly on the street by a guy in a green uniform and a Smokey the Bear hat who can demand to see your papers, then look at you in dismay and say things like "Zes papah are not in ordah!". And it's all 100% legal and "constitutional"... that is if you believe in the Lllllllllllllllllllliiiiving constitution! Weeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee!

  • Old Man With Candy||

    You can indeed be stopped, but you can indeed just say, "I do not consent to talk with you," repeatedly, or just stare back at them silently until they give up or tase you.

  • Groundtruth||

    Yup, Bin Laden was brilliant.... for the cost of a half million dollars and 19 men, he's brought down 4th, 5th and 6th amendments and gotten us to trash the entire premise of the Constitution: a presumption of decency.

    It may not look like it on the surface, but follow the twisted logic of politics, and somehow taking on this criminal has been turned into a premise for every paranoid xenophobe to claim that we're under attack from Mexico.

  • ||

    No kidding. The man got us to cut our own throats. The those cocksuckers, called congressmen, fell for it hook, line, and sinker.

  • ||

    Your implication is that those in power were not only too happy to have an excuse to gut the Constitution and to infringe on our most basic Constitutional rights. The American people got screwed, but the ruling class got a gift.

  • Shannon Love||

    ...has been turned into a premise for every paranoid xenophobe to claim that we're under attack from Mexico.

    That's especially perverse given that we've had zero terrorist intrusions from Mexico but around 30 from Canada.

    Although Mexico is lawless, it is not chaotic. Everything and everyone in Mexico is monitored by one or more patronage networks. Nothing happens in Mexico that someone powerful does not know about. That is why they remain poor.

    Everyone in Mexico from the peasants to the oligarchs to drug lords have an incentive to keep the border with the US open. Anyone they even suspect of being a terrorist will find themselves in an unmarked grave quicker than we can blink.

    We can't keep out the immigrants and drug dealers but our southern bad border is hermetically sealed against the serious bad guys.

  • Extended Warren T||

    I'd love to do more reading on this issue, can you point me to a page or a book that covers this?

  • Shannon Love||

    Covers what? The terrorist caught over the last 15 years coming from Canada are matters of public record as is the lack of terrorist caught coming from Mexico.

    There are several good works on the way that patronage networks control everything in Mexico but it has been a while since I read them so I don't recall any titles off hand.

    It is pretty obvious how the country works if you spend anytime there. Nothing gets done without permission from some patron. What appears to be disorder is actually conflict between patronage networks. Criminal gangs are just another type of network and they are often integrated into the non-criminal ones as well.

    Mexico has never know true rule of law and doesn't have any functioning institutions. Everything is personal. You get things done based on who you know, who you owe and who owes you.

    The fact that everyone in Mexico has a motive to keep the US border open is rather obvious and doesn't need elaboration.

  • Paul||

    That's especially perverse given that we've had zero terrorist intrusions from Mexico but around 30 from Canada.

    Rick Moranis being one of the best examples... ever.

    Alanis Morisette following closely behind.

  • cornholio||

    I think we need to... BLAME CANADA!

  • cornholio||

    With all their hockey hullabaloo
    and that bitch anne murray, too!

  • Paul||

    He hates us for our freedoms... and we lost them.

  • ||

    Oh wow, that makes a lot of sense to me dude.

    online-privacy.it.tc

  • ||

  • ||

    I'm not surprised that this is going on. Several years back, when I was visiting some friends upstate around Watertown, NY, I was on a Greyhound bus when the Border Patrol showed up. Interestingly enough, they asked for EVERYONE's papers, including mine, and I'm a Black guy. Save for some East Asian looking guy, they gave everyone's papers the once over, then moved on with life. I figured it was legal, but it was a definite waste of resources.

  • SIV||

    They have Black people in Canada.

  • AlmightyJB||

    Actually there's a list.

    http://en.wikipedia.org/wiki/List_of_Black_Canadians

  • hmm||

    I can confirm this.

  • Paul||

    They have Black people in Canada.

    They're hard to find.

  • cornholio||

    About as common as black Mormons, though for different reasons.

  • ¢||

    Actually there's a list.

    ..of the Toronto Raptors, eight still unaccounted for '60s draft dodgers, and Rae Dawn Chong.

  • hmm||

    If I get my SS# tattooed on my johnson would it be illegal to use that as my "papers" when asked?

  • hmm||

    Doh I forgot. Our SS# isn't for identification, or wasn't supposed to be.

  • Extended Warren T||

    I don't believe the Border Patrol usually carry magnifying glasses with them.

  • MWG||

    Zing!

  • DesigNate||

    I'd like to shove this in everybodies face to show we think ALL of this immigration stuff is bullshit.

  • ||

    I hate to break it to you but a simple police officer can walk up to in the street and ask you questions.....

    You are going to have to elaborate this for me to give a shit.

  • Barely Suppressed Rage||

    Geez, this is a bad morning for me to read shit like this.

    For some reason, I woke up seriously pissed off this morning - which is very unlike me (screen name notwithstanding).

    All morning I've been simmering and then I come here and read this fucking jackassery and it makes me want to puke nails.

    And we've got the smug fucking progressive lefties like Maddow and company rolling their eyes and smirking at the deluded right-wing teafucking ratbaggers who claim the country is becoming a socialistic police state. I submit that, with evidence such as this, and the bullshit about videotaping a cop being "wiretapping" or "resisting arrest", there is good reason to suspect that it in fact is.

  • ||

    The New York Times reports that Border Patrol agents routinely board buses and trains near the Canadian border (but not on routes that actually cross it) to grill passengers about their native countries and immigration status.

    A similar thing happens on (long-route) buses in Mexico: they stop at dedicated drug inspection places and the bus and everyone's luggage is searched as a matter of course; at another stop a cop gets on a checks all the IDs, and none of this happens near the US border. Worse yet, the buses have TVs.

  • ||

    And here I was thinking you were talking about the crap Canadians put visitors to the Great White North through.

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