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.