IT WAS NEARING LUNCHTIME WHEN I PAID TWO DOLLARS TO park in the large private lot beside the port of entry between Progreso, Texas, and Nuevo Progreso, Tamaulipas, in November 2018. The other border crossers, gathering their belongings and locking their cars, were a mix of younger women in jeans and plaid shirts with kids in tow and older white retirees headed to Mexico for cheap drinks. I had heard that the best tacos were at Taqueria Victor, a hole-in-the-wall place on the Mexican side, and I was going to cross the border to find out. First, though, I decided to take a walk along the border wall on the U.S. side. It was a sunny and clear day, with a beautiful blue sky. Even in late November, the Rio Grande Valley was still warm and pleasant, so it seemed like a good time to stretch my legs.
The border is often perceived as a dangerous and restricted place, but pedestrians are free to walk along it for as long as they like in most locations. I headed to the west of the port of entry, past Customs and Border Protection office buildings and sheds. All that stood between me and the languid, brown Rio Grande was a ten-foot-high chain-link fence. It had been cut every few feet, and the Border Patrol had opted to mend the damaged sections with concertina wire. After a few hundred feet, the maroon bollard-style barrier began and stretched out in front of me until it curved south, following the path of the river. Except for the wall, the area resembled countless other lonely roads in rural farming communities. To my right was a drainage ditch beside a fallow field with a few withered cornstalks strewn about. There was no one around.
I walked past the bend in the wall and saw a green and white Border Patrol truck parked ahead on the gravel road, facing west. As I came up behind it, I could see that there was one agent seated inside. On a few occasions when I have stumbled upon Border Patrol trucks in isolated locations where the agents were not expecting to see anyone, they were asleep and never even knew I was there. This time the young, white, male agent had his head down, looking at his phone in his lap. He glanced up as I passed, giving me a single nod. Then he went back to whatever he was doing on his phone. I went a little farther down the road before my stomach told me it was time to return to the port of entry and head over to Nuevo Progreso for those tacos. They were delicious.
It might seem odd to conclude a book about the out-of-control Border Patrol with a story in which literally nothing happens, but that is the point. Despite lurid headlines about continuous crises and race-baiting politicians who blame immigrants for every problem in society, the border itself is generally a quiet place. The brief nod from the Border Patrol agent looking at his phone captures all the paradoxes of the United States–Mexico border. On the one hand, the ubiquitous presence of agents gives the border zone the feeling of an occupation. Border Patrol trucks are everywhere, and the dozens of permanent checkpoints and hundreds of temporary locations create the perception that the border is a war zone where constant threats require a massive, militarized response. The occupation seems to justify the violations of the Fourth Amendment that come with it, from vehicle stops based only on a few facts that raise an agent’s suspicion to interior checkpoints on interstate highways that stop every single vehicle for questioning and a quick pass by a drug-sniffing dog. The presence of thousands of agents, with expansive powers to stop and interrogate anyone inside the United States, has led to the violent excesses described in this book.
On the other hand, the daily work of the Border Patrol agents is boring. From 2011 to 2020, the average agent made fewer than two apprehensions per month, or one apprehension for every eleven shifts on duty. That means two full weeks of work to find one person in the United States without documents. What that looks like in reality is hours sitting in a truck staring at the border wall. Day. After day. After day. It means hours surfing the internet on a phone, while occasionally looking up as a farmer, or a professor, passes by. It means working shift after shift at an interior checkpoint on an American highway, asking every driver about their citizenship. Even then, as People Helping People’s monitoring of the Arizona checkpoint found, days can go by without a single apprehension or drug seizure.
My leisurely walk at Progreso also illustrates how privilege works at the border. As a white American male, I can think it reasonable to cross an international border for lunch. Afterward, I can stroll back into the United States after a few cursory questions from a customs official, even as the family of four standing beside me is aggressively interrogated. They are all short with curly black hair and brown skin and are asked to account for every aspect of their lives while surrounded by three agents, with grim looks on their faces and hands on their hips. I can decide to “stretch my legs” with a walk along the border wall. I can sneak up on and startle a Border Patrol agent without any real concerns. I can be confident that the agent will not even bat an eye when he sees me, mere feet from his truck. I can expect that he would not roll down the window to ask what I was doing or why I was there. I can assume that just by looking at me, he will know that I belong. My white skin is a passport that gives me access to that place.
The Supreme Court gave Border Patrol agents the right to use racial profiling in their work. That profiling happens every day. When racial profiling is discussed, the focus is on what happens to people with brown skin who are asked to explain why they are speaking Spanish in a convenience store in Montana or who are twenty-six times more likely to be asked to show their ID at an interior checkpoint in Arizona. What is often overlooked is that white people are profiled every day. The white people who live in the border zone but have never been pulled over by the Border Patrol were racially profiled. The white people who were waved through an interior checkpoint before they even came to a complete stop were racially profiled. The white people who found the Border Patrol agents they encountered friendly and respectful, just as they expected federal officers to be, were racially profiled.
The Supreme Court heard the last major Border Patrol case in 1976, when it allowed interior checkpoints in Martinez-Fuerte. In the forty-five years since, the number of Border Patrol agents has increased more than tenfold, even as the number of people apprehended by the Border Patrol has declined. As Mitra Ebadolahi of the ACLU told me, when the Supreme Court ruled on the Border Patrol’s procedures, “There were no drugs, there were no sensors, there was no surveillance technology, there were no digital databases. It was a completely different world. We didn’t have any border walls. All of the reasoning in Martinez-Fuerte is predicated on those facts. None of which exist today, nor have existed for thirty-five years.”1
Over that same period, the southern border has been transformed in the public’s perception. It went from being a sleepy backwater that rarely filtered into the national news to a militarized zone at the center of the national political conversation. In the 2016 presidential campaign, Donald Trump used the border wall as a symbol for his racialized vision for America, where all immigrants were invaders who brought crime and disease, who depressed American wages and destroyed traditional American culture. None of these claims were true. They are racially driven arguments to create fear that immigrants are replacing white Americans.2
Over the summer of 2021, a parade of Republican lawmakers made pilgrimages to the border for photo ops about what they called a border crisis. Most kept up the charade that a crisis was happening by wearing bulletproof vests as they toured the Rio Grande on gunboats, even while they passed people swimming at beaches or enjoying the sunny weather on party boats. A few let slip that there was not actually a crisis at the border. In August 2021, Representative Cliff Bentz, a Republican from Oregon, said, “I’m surprised to see . . . the lack of sustained impact. I’m glad to see there’s not the impact I was expecting.”3 Even though there is not really a crisis at the border, the relentless framing of it as such has poisoned the discourse to the extent that even politicians who might normally be sympathetic to a more humane border policy are hesitant to say so out of fear of being attacked as anti-American.
Despite the transformation of the border in the public imagination, the people arriving there are largely the same as they always were. The majority are still migrant farm and factory workers from Mexico. In the past few years, they have been joined by entire families fleeing violence in Central America. These families with small children, who turn themselves in to the Border Patrol as soon as they step foot in the United States in order to apply for asylum, pose no threat and deserve humane treatment. However, that is not what they have received. As journalist Garrett Graff memorably put it, “CBP went out and recruited Rambo, when it turned out the agency needed Mother Teresa.”4
The border needs to be reimagined as a place of connection and movement, not of threat and security. Migration is a normal practice that humans have engaged in for millennia.5 The ancestors of every single person in the United States migrated there at some point, even those of Native Americans who have been there longer than most. Militarized borders to prevent the movement of civilians are a new phenomenon that emerged in the United States only as non-white immigrants began to arrive in the second half of the nineteenth century. The 1924 Immigration Act established national origins quotas that were meant to ensure that, in the words of the bill’s author, Senator David Reed, “the racial composition of America at the present time thus is made permanent.”6 The Border Patrol was created that same year to enforce racial rules about who could enter the United States. Even after the explicitly racial quotas were removed in 1965, the border has continued to be a place shaped by racial exclusion through the present day.
Jenn Budd, the former senior Border Patrol agent, explained to me, “How do you expect this agency not to be racist? Aren’t the laws they are enforcing racist?” She continued, “At the heart of this circle is the ugly, beating, racist, white supremacist heart. That has always been in the Border Patrol; that was what the Border Patrol was founded on. It was grown from those seeds, and it is still there.”7
The decisions of the Supreme Court in the 1970s played a significant role in allowing violence and racial exclusion at the border to continue into the contemporary era. This book seeks to add two of those rulings, United States v. Brignoni-Ponce (1975) and United States v. Martinez-Fuerte (1976) to the list of the most infamous Supreme Court decisions of the past, such as Dred Scott v. Sandford, Plessy v. Ferguson, and Korematsu v. United States. However, among those now mothballed reminders of America’s racist past, Brignoni-Ponce and Martinez-Fuerte are the only ones still put into practice every day. Brignoni-Ponce allowed Border Patrol agents to use race along with at least one other factor to stop a vehicle during a roving patrol on American highways. Martinez-Fuerte authorized agents at interior checkpoints to use race as the only factor in deciding to send a vehicle to secondary inspection for additional questioning.
These Supreme Court decisions allowed the Border Patrol to become what it is today. As Justice William Brennan wrote in his dissent to Martinez-Fuerte, the Supreme Court’s Border Patrol decisions amounted to an “evisceration” of the reasonableness requirement in the Fourth Amendment, allowing agents “to stop any or all motorists without explanation or excuse” and “target motorists of Mexican appearance.” The Border Patrol’s actions in the years since have borne out Brennan’s dire predictions. The vast size of the one-hundred-mile border zone, combined with the ability to manufacture suspicion to justify any vehicle stop, results in severe limitations on constitutional protections in a zone that stretches deep into the interior of the United States.
One of the most vexing things about the weakening of Fourth Amendment protections for the Border Patrol is the completely arbitrary size of the border zone. The one-hundred-mile zone was not legislated by Congress. Instead, it was formalized in 1947 through an administrative order without any public comment or oversight. While in the 1930s officials were outraged that the Border Patrol was operating as far as twenty miles inside the United States, after 1947, the one-hundred-mile border zone has remained unchanged and largely unquestioned for almost seventy years.
The enormous border zone is the result of a simple administrative decision that could be reversed immediately by the secretary of the Department of Homeland Security. Similarly, the secretary could immediately end the use of interior checkpoints that inconvenience millions of Americans living in the border zone and kill hundreds of people per year by forcing migrants to trek dozens of miles through the deserts of the U.S. Southwest.
Some of the other problems identified in this book require legislative solutions. Congress has the power to reduce the Border Patrol’s enormous budget, cap the number of agents, and restrict Air and Marine Operations’ ability to use drones and airplanes for surveillance across the entire United States. Congress could also change the wording of the Border Patrol’s authorization to remove the ability to make vehicle stops without a warrant in order to bring the agency into compliance with the Carroll doctrine and the Fourth Amendment rules that govern all other police. Finally, Congress should revisit the 9/11-era legislation that gives the Secretary of the Department of Homeland Security broad authority to reassign federal agents for general policing inside the United States.
There are already some positive steps in these directions. In August 2021, the Border Patrol decided to outfit some agents with body cameras, which begins to address the problem of abuse of immigrants in remote locations beyond the view of the public. In addition to Senator Patrick Leahy’s efforts to rein in interior checkpoints and shrink the one-hundred-mile zone, a new group of Democratic politicians have questioned the Border Patrol’s practices. In August 2021, Representatives Rashida Tlaib of Michigan and Jamie Raskin of Maryland asked the secretary of DHS for an explanation of why the Border Patrol considers Lake Michigan part of the border zone and how it justifies the racially discriminatory outcomes the ACLU identified in its arrest records in Michigan. Tlaib, along with Representatives Alexandria Ocasio-Cortez (New York), Ilhan Omar (Minnesota), and Ayanna Pressley (Massachusetts) also called for substantial reductions to border security funding: “CBP and ICE are rogue agencies that act to inflict harm on our communities and have a pattern of behavior of abuse and mismanagement of funds. This year, the House must hold CBP accountable for their egregious violation of the law by withholding any further funding and imposing additional accountability measures with real consequences.”8
In the end, despite all the changes in American society in the almost one hundred years since the Border Patrol was established, there has been continuity in the actions of the agents themselves. The Border Patrol was founded to enforce racial rules for entry to the United States, the Supreme Court confirmed the legality of their racial profiling, and they continue to conduct racialized policing today. In 2014, the Department of Justice banned racial profiling for other federal law enforcement officers but included an exception for the Border Patrol and other agents involved in immigration enforcement. The very first Border Patrol agent was named after the president of the Confederacy. In 1954, the U.S. government officially termed its effort to crack down on migrant workers “Operation Wetback.” Today, Border Patrol agents regularly use racist terms like tonk, wetback, and beaner to describe the people they interact with at the border.
The earliest Border Patrol agents were drawn from frontier law enforcement and had a loose interpretation of the rules. In the 1970s, the Supreme Court ruled that the Fourth Amendment protections against unreasonable searches and seizures did not fully apply in interactions with the Border Patrol. Today, agents engage in illegal activity at a rate far higher than other police officers and are regularly accused of violence in interactions with people they detain. Nevertheless, there is little consequence to their violent actions. No action is taken by the agency in the majority of complaints lodged against agents and no agent has ever been convicted for an on-duty killing, even when there is clear video evidence that the victim posed no threat to the agents involved.
Although the border may feel distant from many people’s daily lives, it is much closer than it seems. Warrantless stops, interior checkpoints, and racial profiling are authorized within a vast area that includes the homes of two-thirds of the United States population. Security and surveillance practices tested at the border have a tendency to seep into the society as a whole.9 This is evident in the use of CBP aircraft for a wide range of surveillance activities inside the United States that have no connection to the border, such as monitoring the homes of Indigenous environmental activists. It is also visible in the deployment of BORTAC units to do internal policing in situations without any immigration purpose, such as standing guard with shoot-to-kill orders at the funeral of George Floyd. The stories of musicians like Snoop Dogg, who was detained by the Border Patrol at an interior checkpoint for marijuana possession while driving from Los Angeles to San Antonio to attend his son’s football game, and Evelyn Bassi, who was kidnapped by the Border Patrol while standing in front of a Starbucks in downtown Portland, demonstrate the startling reality: everywhere is becoming a border zone.
Even though the Border Patrol has not yet started to deploy their expansive authority to stop vehicles, use racial profiling, and set up checkpoints on a widespread basis in major American cities, legally they could. It is time to reconsider that authority before they do. Until then, as Thurgood Marshall foresaw almost fifty years ago, “nobody is protected.”
Acknowledgments
THERE ARE MANY PEOPLE TO THANK FOR HELPING MAKE this book a reality. First, I want to give thanks to my family for always supporting my work. My children, Rasmey and Kiran, as well as my partner, Sivylay, have traveled with me to many of these research sites. Sivylay also read and commented on the complete draft of the book. Thanks to my parents, Wally and Celia, for their continuous support, and to my brother, Brent, who edits early drafts of my books, before I am ready to show them to anyone else.
Thanks to Todd Miller, Geoff Boyce, and Gabriel Schivone for advice about research on the Border Patrol and Freedom of Information Act requests. Todd and Geoff also read the entire book and provided feedback. Corey Johnson and Md. Azmeary Ferdoush commented on the complete book and Thomas Belfield read sections of it.
Thanks to everyone who agreed to speak with me about the Border Patrol and the Supreme Court. These include Bill Addington, Gilles Bissonnette, Terry Bressi, Jenn Budd, Penny Clark, Mitra Ebadolahi, Max Granger, Alex Rate, Chris Rickerd, Chuck Sevilla, Sophie Smith, and Christina Whitman. John Jeffries Jr. also provided helpful information on Lewis Powell’s time on the court. Thanks to those who spoke with me but preferred not to be named.
I am particularly thankful to the Lewis F. Powell Jr. Archives at Washington and Lee University for digitizing the documents from his Supreme Court years and making those freely available online. This is an important public service and is deeply appreciated. I wish more archives would follow their lead. I also drew on Supreme Court documents from the National Archives in Washington, D.C. Thanks to Cory Lenz at the William S. Richardson School of Law Library who found the documents that confirmed that the one-hundred-mile border zone was established in 1947.
There were several books that proved particularly useful as I delved into the history of Border Patrol. Kelly Lytle Hernández’s Migra! and Deborah Kang’s The INS on the Line were critical for understanding the formative years of the Border Patrol. John Jeffries’s biography of Lewis Powell provides a nuanced and complete picture of the man. Todd Miller has written several books about the expansion of the Border Patrol after September 11. Border Patrol Nation and Empire of Borders were particularly useful for this book. I first learned about the Brignoni-Ponce case from Mat Coleman, who mentioned it to me in passing in a conversation at a conference, over a decade ago. Thanks for planting one of the seeds that grew into this book.
In March 2019, I gave a talk at the School of Environment and Development at the University of Arizona in Tucson, organized by Orhan Myadar and Stefano Bloch. On the following day, Stefano and Daniel Martínez organized a trip to Ambos Nogales, where we walked the border wall along Calle International where José Antonio Elena Rodríguez was killed. In October 2018, I gave a talk at the University of Texas, Rio Grande Valley, organized by Caroline Miles and Dennis Hart. It was my first visit to the South Texas borderlands and the trip gave me the opportunity to visit many sections of the border wall. Thanks also to Scott Nicol for showing me around the border in McAllen and Mission, Texas.
Thanks to the John Simon Guggenheim Foundation for financial support for this project through the fellowship program, and to the Social Science Research Institute at the University of Hawai‘i at Mānoa for a Research Support Award in 2018–19 that funded the early research for this project. I owe particular gratitude to my research assistant Md. Azmeary Ferdoush who located many old congressional records, manuscripts, and reports about the various people and organizations that feature in this book. Thanks also to Kevin Morris for research assistance on old case files in the law library.
My agent, Julia Eagleton of Janklow & Nesbit, provided excellent guidance and assistance for the book proposal. Thanks to everyone at Counterpoint Press for bringing the book to publication, including Dan Smetanka and Dan López on the editorial side, Laura Berry in production, and Lena Moses-Schmitt, Megan Fishmann, Rachel Fershleiser, and Mandy Medley in marketing. Thanks to Katherine Kiger for careful copyedits. Finally, mahalo nui loa to my colleagues who make the Department of Geography and Environment at the University of Hawai‘i at Mānoa such a great place to live and work.