We, state and local elected leaders and legislative bodies, charged with serving and protecting our constituents, do hereby express our concern that federal police powers to act without a warrant, granted to federal immigration authorities in perimeter states including California, Michigan, New York, Florida, and Texas, erode the integrity of the U.S. Constitution, jeopardize our communities, and undermine public safety for all.

Currently, federal law creates federal police powers that do not require a warrant to interrogate any person, stop any vehicle within a “reasonable distance” from the land and sea borders, and enter onto private property (but not dwellings) within 25 miles of the borders. See Section 1357(a) of Title 8 of the U.S. Code. Outdated federal regulations define “reasonable distance” expansively as up to 100 air miles from any land or sea border. This area encompasses the entire perimeter of the country and includes seven of the ten largest cities in the country including New York, Los Angeles, Chicago, Houston, Philadelphia, San Diego and San Jose. In fact, the majority of the U.S. population lives in this “border” area. 

Emboldened by these provisions, federal immigration officers lacking probable cause stop, interrogate and search children on their way to school, parents on their way to work, and families going to doctor’s appointments or the grocery store, well inside the United States. These agents also enter private property without warrants: places where friends play, people pray, or employees work. Such law enforcement tactics amount to “stop-and-frisk” policing by federal authorities, eroding the rights of residents in perimeter states.

Although the U.S. Department of Justice prohibits federal law enforcement officers from engaging in profiling based on race, religion, national origin, sexual orientation, gender and other identity, the Department has carved out a border region “exception.” This means that not only do federal officers exercise police powers over our constituents without warrants, but they are emboldened to engage in profiling that the Department of Justice otherwise prohibits and is an abhorrent practice that is offensive to human dignity and has proven to be an ineffective law enforcement strategy.  

The 100-mile zone’s warrantless law enforcement is extraordinary and violates our constitutional right to be free from unreasonable searches and seizures, and to be treated equally under the law. These police powers undermine our liberty and make routine a regime of demanding people’s papers that is anathema to our democracy. When compounded with racial, religious and identity profiling, these federal powers harm our values as a diverse and inclusive nation, and they endanger our communities. In light of the above, we the undersigned do hereby call on the President and Congress to do the following:

1. END FEDERAL “STOP-AND-FRISK” POLICE POWERS by amending 8 USC § 1357(a) to reflect the same limitations on warrantless policing in perimeter states that apply across the country.
2. LIMIT “BORDER ENFORCEMENT” TO THE ACTUAL BORDER by amending federal regulation 8 CFR § 287.1 to define a “reasonable distance” for border enforcement to the actual physical border.
3. BAN DISCRIMINATORY PROFILING EVERYWHERE by issuing federal agency guidance or enacting legislation that prohibits profiling once and for all with limited exceptions for specific suspect descriptions.

See Background Information Below Sign-On Form

BACKGROUND FOR SIGN-ON STATEMENT

The Fourth Amendment of the U.S. Constitution protects people’s right to privacy and freedom from arbitrary governmental intrusion, and provides specifically that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Read together, the Fifth Amendment and Fourteenth Amendment provide for equal protection under the law, and that no person shall be deprived of “life, liberty, or property, without due process of law.”

The federal statute 8 USC § 1357(a) and the corresponding federal regulations at 8 CFR § 287.1 run counter to the Fourth Amendment by granting immigration officers police powers without a warrant. They also offend the equal protection provided by the Fifth and Fourteenth Amendments as applied to the communities living in perimeter states and border cities, inside the United States, and subject these communities to warrantless interrogation, stops and entry onto private property.

WARRANTLESS INTERROGATION & RACIAL AND IDENTITY PROFILING

Section (1) of 8 USC § 1357(a) specifically grants immigration officials the authority to interrogate, without a warrant, any “person believed to be an alien.” The Department of Justice has issued guidance for federal law enforcement agencies prohibiting the use of race, ethnicity, gender, national origin, religion, sexual orientation or gender identity in making routine or spontaneous law enforcement decisions, including in immigration matters. The Department of Justice has stated, however, that this guidance does not apply in the “vicinity of the border,” which is not defined.

As a result, border communities are vulnerable to profiling activities that are banned as ineffectual and discriminatory elsewhere in the country. These practices have been rejected nationwide and do not reflect best law enforcement practices in the 21st century.

WARRANTLESS BOARD & SEARCH

Section (3) of 8 USC § 1357(a) specifically grants immigration officials the police power, without a warrant, to “board and search for aliens” “any vessel, railway car, aircraft, conveyance or vehicle,” within a “reasonable distance,” defined in 8 CFR § 287.1 as up to 100 air miles from any land or sea boundary, which encompasses the majority of the U.S. population.

The warrantless police power is used in border communities to stop people in transit to pick up children at school, commute to work, visit a doctor, practice their faith, go grocery shopping, exercise, and spend time with friends. This means that border community members feel the need to prove their right to be in the United States anywhere within the 100-mile zone. This area includes San Diego, San Francisco, Seattle, Detroit, Chicago, Boston, New York, Miami, Houston, Los Angeles and many other cities in the country.

The warrantless police power of an immigration officer is applied to all people, regardless of whether they are a citizen or not, and the Department of Homeland Security has not followed the Justice Department in banning discriminatory profiling in the border region to determine who should be stopped.  Profiling that offends equal protection and American values undermines the liberty of community members to move freely inside the United States and legitimizes a “show me your papers” state that is anathema to our democracy.

WARRANTLESS ENTRY ONTO PRIVATE PROPERTY

Section (3) of 8 USC § 1357(a) also grants immigration officials the police power, without a warrant, to enter onto private property, excluding dwellings, within 25 miles of any land or sea boundary for the purpose of “patrolling the border.” This area encompasses major metropolitan areas in the United States.

This means that immigration officials enter the yard of a house where children are playing, the grounds of a house of worship where people are praying, and the property of a business where employees are working, all without a warrant. They look for people they “believe to be an alien” without a complete ban on discriminatory profiling, which means that people viewed prejudicially as non-conforming or non-belonging may be subject to interrogation.

The police power of warrantless entry onto private property is a direct contradiction of the Fourth Amendment, is not a power granted to state and local law enforcement, and generates fear, confusion and anxiety in our communities. It also violates trust that local law enforcement has built with community members.

Special border-area police powers to interrogate, to stop, and to enter onto private property, all without a warrant or other probable cause, undermine our constitutional protections.  By carving out exceptions to constitutional protections in an area where the majority of the population lives, these powers erode the integrity of our constitutional principles which are the foundation of our democracy.

It’s time to reconsider these powers and protect our communities from the kinds of governmental intrusions that this country’s founders sought to avoid. If our constitutional principles are to stand the test of time, they must protect us all without exception. They must reach all corners of the country and cover the entire United States. 

For more information about this sign-on statement, contact Christian Ramirez, director of the Southern Border Communities Coalition, at 619-885-1289, or at [email protected].