Introduction
Americas’ Department of Homeland Services (DHS) has a broad federal mandate and border security is an appropriate example. Border protection, making travel faster and the border safer, along with the creation of safer border environments are the overarching objectives of the departments’ border security program and agencies. Equally, the phrasing of constitutional amendments means that personhood and jurisdiction provide the basis for application. Put differently, both citizens and non-citizens have rights under the American constitution. Federal agencies designed for border security operations are similar to conventional law enforcement agencies to the extent that they derive their mandate from the constitution. Hence, it is necessary to focus on the legal issues emanating from border security.
Border security policies have come under criticism for their elevated strictness, use of force, and surveillance in the aftermath of the September 11 th, 2001 terrorist attacks. Consequently, a pattern of legal issues originating from said policies has developed. First, stricter anti-illegal immigration policies have increased deportation and removal cases across federal and state levels. Secondly, this policy position has also created documentation issues as both jurisdictions and states seek more robust regulatory frameworks to monitor immigrant movement. Third, confiscation of property is associated with border security programs typically targeting illegal drugs, as well as prohibited fruits and vegetables. Fourth, these policies have led to the apprehension and detention of non-illegal aliens through mechanisms like wrongful identification. The Department of Homeland Security (2018) asserts that its border security mandate is to: “Protect our borders from the illegal movement of weapons, drugs, contraband, and people while promoting lawful entry and exit, is essential to homeland security, economic prosperity, and national sovereignty”. Increases in Border Patrol staffing; the construction of new infrastructure and fencing; use of advanced technology to modernize ports of entry; and stronger partnerships and information sharing are some of the commensurate tactical approaches (DHS, 2018). The outcome is an environment of elevated policy strictness, the increased use of force and surveillance in border security operations to the detriment of several constitutional amendments rights.
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Discussion
From the preceding paragraph, it is evident that border security operational tactics use surveillance and suspicion. Equally, the 4 th amendment notes that: “people have a right to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures” (Friedman & Kerr, n.d). Effectively, it limits the power of border security law enforcement agencies to seize and search people, their homes, and property. In instances where non-citizens are criminally charged, the 5 th and 6 th amendments protect their procedural rights such as the right to a jury trial, protection against self-incrimination, and the right to counsel (Somin, 2017). Constitutional phrasing, noticeably, uses words like ‘people’ and “person” but not ‘citizen’ in extending amendment rights to people physically present in American soil. The 5 th amendment states that: “no person … shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property without due process of the law” (Frazee, 2018). Analyzing the phrasing of both amendments reveals that the constitutional provisions apply on the basis of personhood and jurisdiction of the United States. However, the manner in which these rights are observed in practice is complex to the extent of presenting legal issues.
Based on media and legal practitioners’ reports, immigrants do not enjoy the right to due process as enshrined in the 5 th amendment. In Reno v. Flores (1993) , Justice Scalia noted that: “it is well established that the Fifth Amendment entitles aliens to due process of law in deportation proceedings” (Dwyer & United States Supreme Court, 2014). The respondents, described as juvenile aliens were arrested by the Immigration and Naturalization Service (INS) on suspicion of being deportable. Primarily it was held that such juveniles may be released to a parent, legal guardian, or other related adults in accordance with both the INSs due process clause and the Immigration and Nationality Act. It is upon this case that the government agreed to release children to their parents, licensed programs or relatives within 20 days (Dwyer & United States Supreme Court, 2014). Therefore, this case is evidence of the existence of laws that protect immigrants due process rights under the 5 th amendment.
Conversely, the Illegal Immigration Reform and Immigration Responsibility Act of 1996 has provisions under its ‘expedited removal’ process that facilitates the removal of immigrants without a court hearing. Under the aforementioned process, illegal immigrants who have been within America for less than 2 years and are within 100 miles of the border can be deported almost immediately and without engaging the court process (Rivlin-Nadler, 2019: Nemeth, 2016: Alperen, 2017). Asylum seekers, a notable exception, must be granted a hearing. Furthermore, those not subjected to the ‘expedited removal’ process to some degree have their right to due process observed in immigration courts. Despite constitutional provisions being based on personhood and American jurisdiction and not citizenship, legal practitioners assert that the immigration court processes grant immigrants very few rights. Specifically, authentication of documents is not mandatory and hearsay is admissible as evidence during immigration court proceedings, neither of which is acceptable practice in most courts (Frazee, 2018). Additionally, they note that the courts’ purpose does not extend the determination of whether persons have legal claim to remain on American territory. Collating the court process and purpose, then it comes as little surprise that immigration courts have irregularly high conviction rates. Therefore, there are pieces of legislation, legal systems, and processes whose practical implications do not align with the spirit and letter of the 5 th amendment.
Similar observations have been made in connection with the 4 th amendment. While the constitutional provisions apply equally to citizens and non-citizens, there is the ‘border search exemption’ (Nemeth, 2016: Alperen, 2017). Practically, this means that border searches are not unreasonable on account of the location of the activity. Effectively, it equates Border Patrol agent searches with those conducted at airports and other ports of entry. Historically, this exemption was necessary to facilitate the collection of duties but it current application has stronger security and safety connotations. In United States v. Martinez-Fuerte (1976) , the Supreme Court held that internal checkpoints were not violative of the 4 th amendment and the defendant was convicted on 2 counts of illegally transporting aliens. Significantly, the Court cited Terry v. Ohio (1968) requirement of roving patrols in stating that Border Patrol agents can exercise secondary inspections without probable cause or reasonable suspicion and not violate the 4 th amendment (Dwyer & United States Supreme Court, 2014). Hence, the pattern of practical complexities escalates based on case laws base on constitutional exemptions.
It is this exception or interpretation of its phrasing that has become a source of legal controversy and contention. Currently, it is the basis upon which the court system has tried to identify that which constitutes a border. The Justice Department has established a 100-mile wide border extension. Based on the ruling in United States v. Martinez-Fuerte (1976) , Border Patrol agents have the ability to expand their operational tactics to include transportation checks to complete border patrol, roving patrol and immigration checkpoint operations (Dwyer & United States Supreme Court, 2014). Effectively, this means that Border patrol agents board both trains and buses within the extended border area with the sole purpose of asking passengers for their identification as a tactic of arresting illegal immigrants. Such operations are conducted in ways that do not respect the rights of those on the receiving end (Rivlin-Nadler, 2019). For example, agents can perform identity searches without informing passengers that they are allowed to refuse to show identification and that such action does not contribute to reasonable suspicion for a search. Furthermore, not only is it difficult to establish accountability in terms of tracking how many searches the agents conduct, but quantifying the number of people harassed because of living next to the border and incidents of racial profiling (Rivlin-Nadler, 2019). The aggressive approach extends to the use of surveillance and electronic surveillance. Extensive surveillance capabilities and agencies operating under 4 th amendment exemptions within an extended border mean that border security agencies might have the ability to surveil anyone without reasonable suspicion or probable cause (DHS, 2018). Again, media and legal practitioners’ reports suggest that protection of the expectation of privacy is being eroded by said agencies. Consequently, solutions addressing the multitude of legal issues arising from the operations of border security agencies are necessary.
Conclusion and recommendations
The Department of Homeland Security’s mission is significant in protecting the American way of life in terms of ensuring internal security, national sovereignty, and economic prosperity. However, respect for the rule of law remains paramount and acquire added significance in trying times. Reports indicate that to fulfill their mandate, border security agencies have conducted operations that are present legal challenges. Responsibility for the establishment of constitutional order and its advance or defense rests with Congress and the judiciary. Border security agencies have cases where they have been accused of using dubious legal interpretations to bypass constitutional order and infringe on the rights of people. It is the recommendation of this report that the judiciary take up the role of defending and interpreting the constitution more robustly. It is the ultimate interpreter of the constitution and the Department of Homeland Security is constitutionally-bound to uphold the rule of law.
References
Alperen, M. J. (2017). Foundations of homeland security: Law and policy . Hoboken, NJ: Wiley & Sons.
Department of Homeland Security (DHS). (2018). Border Security Overview . Retrieved from https://www.dhs.gov/border-security-overview
Dwyer, T. P., & United States Supreme Court. (2014). Legal issues in homeland security: U.S. Supreme Court cases, commentary, and questions . Flushing, NY: Looseleaf Law Publications, Inc.
Frazee, G. (2018). What constitutional rights do undocumented immigrants have? Pbs News Hour . Retrieved from https://www.pbs.org/newshour/politics/what-constitutional-rights-do-undocumented-immigrants-have
Friedman, B & Kerr, O. (n.d). The Fourth Amendment. National Constitutional Center (NCC) . Retrieved from https://constitutioncenter.org/interactive-constitution/amendments/amendment-iv
Friedman, B & Kerr, O. (n.d). What the Fourth Amendment Fundamentally Requires. National Constitutional Center (NCC). Retrieved from https://constitutioncenter.org/interactive-constitution/amendments/amendment-iv/the-basics-of-the-fourth-amendment/interp/4
Nemeth, C. P. (2016). Homeland Security: An Introduction to Principles and Practice (2 nd ed.). Boca Raton, Florida: CRC Press
Rivlin-Nadler, M. (2019 January 7). Newly Released FOIA Documents Shed Light on Border Patrol’s Seemingly Limitless Authority. The Intercept . Retrieved from https://theintercept.com/2019/01/07/cbp-border-patrol-enforcement-law-course/
Somin, I. (2017 April 30). The Constitutional Rights of Noncitizens. Learn Liberty. Retrieved from https://www.learnliberty.org/blog/t-he-constitutional-rights-of-noncitizens/
