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Frequently Asked Questions
Deputy Chief Patrol Agent Joseph W. Giuliano presented this list of answers to frequently asked questions to the San Juan County Council March 18, 2008.
1. What is the Border Patrol?
The Office of Border Patrol (OBP) is one of three enforcement components of the Department of Homeland Security's (DHS) Bureau of Customs and Border Protection (CBP). The Border Patrol is responsible for securing our nation's borders between, or otherwise away from, the lawful ports of entry. Another CBP component, the Office of Field Operations (OFO), secures the borders at those ports of entry. CBP Air and Marine Operations supports both OBP and OFO in those specialized environments.
The Immigration Act of March 3, 1891 represented the United States' first truly comprehensive immigration legislation. Among its significant provisions, it established the Bureau of Immigration under the Treasury Department and allowed for the creation of rules governing the inspection of persons arriving in the United States from contiguous countries. The subsequent 33 years saw the passage of a panoply of legislation establishing increasingly restrictive immigration controls.
This culminated in the passage of the Immigration Act of May 24, 1924. This litany of legislation was accompanied by a corollary increase in the numbers of prospective immigrants circumventing the prescribed processes for admission into the United States - illegal immigration burgeoned dramatically.
During the 1891 to 1924 period, various attempts were made to safeguard the borders and stem the increasing flow of illegal immigrants and contraband smugglers. The first such group was a force of Mounted Watchmen that was loosely formed circa 1904 and was first Congressionally funded in 1915.
After passage of the Act of 1924, Congress realized that it had overlooked an enforcement provision for that legislation. To correct that oversight, Congress passed a Labor Appropriations Act four days later to create the United States Border Patrol through a combination of direct hiring and assimiliation of the Mounted Watchmen. Thus, the Border Patrol came into existence on May 28, 1924 as an immigration enforcement agency.
The Border Patrol was transferred to the Department of Labor in 1933 and, as a national security measure, to the Department of Justice in 1940. The primary immigration mission remained unchanged, although ancillary involvement in the interdiction of drug and other contraband smugglers came about as a consequence of the environment in which immigration enforcement was conducted.
The creation of DHS in the wake of 9/11 terrorist attacks was the most significant, non-military governmental reorganization since the Truman-era and included the consolidation of the various border security agencies into CBP. On March 1, 2003, the Border Patrol became a component of CBP and its primary mission was redefined as the prevention of the entry of terrorists and/or their implements of terrorism into the United States between or otherwise around the legitimate ports of entry. Despite this redefinition, OBP retained its traditional immigration and drug enforcement missions.
2. Are Border Patrol agents police officers?
Border Patrol agents are federal law enforcement officers. Although some states also recognize them as state peace officers, Washington does not. Thus, Border Patrol agents have no inherent authority to enforce state and local laws other than that vested in an ordinary citizen. However, upon a lawful request for assistance from a state or local law enforcement officer, a Border Patrol agent may furnish appropriate assistance, including as necessary, effecting an arrest for a violation of state law upon the specific demand of that state or local officer.
3. What authority do Border Patrol agents have?
Border Patrol agents' authority is derived from §235 and §287 of the Immigration and Nationality Act (INA) of June 27, 1952, as codified in Title 8, United States Code (USC), §1225 and §1357. respectively. Additionally, the Commissioner of Customs and Border protection has embued Border Patrol agents with Customs enforcement authority pursuant to 19 USC §140(i). This discussion will focus on the subsections that are most relevant to ferry operations.
- USC §1225(2)(1) authorizes Border Patrol agents to, among other things, "...board and search any vessel, aircraft, railway car, or other conveyance or vehicle in which they believe aliens are being brought into the United States."
- USC§1357 (a) authorizes "Any officer...under regulations...without warrant:"
...(1)"to interrogate any alien or person believed to be an alien as to his right to be or to remain in the United States:"
...(2) " to arrest any alien who in his presence or view is entering or attempting to enter the United States, in violation of any [immigration] law or regulation...if he has reason to believe that the alien...is likely to escape before a warrant can be obtained..."
...(3) "within a reasonable amount distance from any external boundary of the United States, to board and search for aliens any vessel... railway car, aircraft, conveyance, or vehicle and within a distance of twenty-five miles from any such external boundary to have access to private lands, but not dwellings, to prevent the illegal entry of aliens..."
...(4) and
...(5)...
- "for any offense against the United States, if the offense is committed in the officer's or employee's presence, or
- for any felony cognizable under the laws of the United States, if the officer or employee has reasonable grounds to believe that the person to be arrested has committed or is committing such a felony.
...if the officer or employee is performing duties relating to the enforcement of the immigration laws at the time of the arrest and if there is a likelihood of the person escaping before a warrant can be obtained for his arrest."
4.What are Border Patrol checkpoints?
First, let's examine why a discussion of ferry terminal operations would include the term "checkpoint," given that the expected association would be with a place where cars and trucks are inspected. Ferries operating on waterways are the functional equivalents of buses operating on paved highways. They are treated identically for checkpoint purposes. Near the southwestern border, buses routinely stop for inspection at Border Patrol highway checkpoints - ferries are subject to the same scrutiny under the same seat of procedures and legal parameters. Therefore, we will use the word "checkpoint" in referring to ferry operations, as this is what they effectively are.
Border Patrol checkpoints are places where all traffic is required to stop for the purpose of inspection for aliens not lawfully entitled to be or remain in the United States. They may take the form of permanent or tactical checkpoints.
Permanent checkpoints are places that operate continuously and are characterized by established infrastructure such as buildings, permanent traffic revisions and sophisticated traffic warning signage. They are not portable.
Tactical checkpoints are short-term operations that are characterized by a lack of permanent infrastructure, entirely mobile signage and temporary traffic revisions. They generally operate for only a few hours at a time and then for a specific tactical purpose. The Blaine Border Patrol sector has no permanent checkpoints, but has operated tactical checkpoints for several years. these have been
used with some regularity on highways, and, to a significantly lesser extent, at ferry terminals. They are not new, although they are now appearing with some greater frequency.
5. What authority does the Border Patrol have to run checkpoints?
In examining checkpoints, it is important to distinguish them from "roving patrol stops." A roving patrol stop is one in which agents on patrol select a specific vehicle - automobiles, trucks, buses, boats, even aircraft - from all others then on the road, in the water, or in the air to be stopped for further examination. The courts have long held that such stops must be prefaced on "...specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion that the vehicles contain aliens, who may be illegally in the country." This "reasonable suspicion" standard falls short of probable cause, but is nevertheless a standard that clearly prohibits arbitrary or capricious stops.
Checkpoints require all traffic to stop, and, as such, are not subject to selectivity on the part of the agent(s) as are roving stops. There is no explicit statutory authority to conduct checkpoint operations. This authority has evolved consequent to numerous court decisions weighing these tactics with Fourth Amendment considerations. Additionally, the courts have held that "reasonable suspicion" is not required at temporary (tactical) checkpoints, as long as the checkpoint is recognizable as such, has clear traffic revisions, is appropriately lighted and is sufficiently visible as to allow approaching motorists to see that other vehicles are being stopped and that Border Patrol agents are operating the checkpoint.
6. Why did the Border Patrol choose to run a checkpoint recently at the Washington State Department of Transportation (WASDOT) ferry terminal at Anacortes
Blaine Sector is aware of a number of incidents in which persons are/or contraband have arrived in the San Juan Islands from Canada contrary to law and that were subsequently intermingled with legitimate ferry traffic to further the illegal entry to the mainland. Intelligence elements have developed information that terror-related organizations have been exploring using established human and drug smuggling enterprises to facilitate the unlawful passage of their personnel into the United States. As the ferry system has been previously exploited by trans-border criminal enterprises, we must consider the possibility that it may also be exploited by terror organizations.
We must also consider that the area geography and resource limitations make it unreasonable to believe that all illegal entry attempts are stopped at the actual land or marine border. The solution to this is "defense-in-depth." The ferry terminal is a second tier in that enforcement posture.
7. Does this checkpoint mean that Border Patrol agents will be doing sweeps through Friday Harbor or any other community?
The Border Patrol mission is focused on security at and near the border. Checkpoint operations support that mission. Roving patrols of urban areas, worksite enforcement and identification or apprehension of domiciled aliens are not part of that mission - those activities are the province of Immigration and Customs Enforcement (ICE). Thus, checkpoints are exactly that and nothing more.
8. Will there be more such checkpoints?
Yes. They will be operated from time to time at the Anacortes terminal and, in the near future at other terminal, as well as on border area highways.
9. What can I expect at a checkpoint?
You will be greeted by a uniformed Border Patrol agent who may ask basic questions such as: "How are you today?" or "Where are you going?" etc. You will be expected to state your nationality and citizenship and could be asked to provide identification. If the agent is satisfied that ther eis no suspicion as to your right to be or remain in the United State, he/she will thank you for your cooperation and allow you to proceed. The entire interaction usually takes less than 30 seconds.
If further information is needed, you may be asked to pull aside to a secondary inspection area. A brief interview will occur, usually less than two minutes in length. This may involve records checks. Unless information is disclosed requiring further action, you will be thanked for your cooperation and allowed to proceed.
10. Do I have to carry a passport?
No. But you should always have some sort of verifiable photo identification. Certainly, if you are driving, you should have a valid driver's license with you. If you are a lawful immigrant 18 years of age or older, the law requires you to carry evidence of alien registration at all times. Failure to do so can result in a fine or your being arrested.
11. Am I required to answer the agent's questions at the checkpoint?
No person can be required to give evidence that incriminates themselves - that is a constitutional right. Neither can any public official compel or coerce such a statement if the person being questioned refuses to give one voluntarily. However, the law is quite clear that agents can interrogate any person who is an alien or who the agent believes to be an alien as to his right to be or remain in the United States. A refusal to answer could be construed as an articulabel fact supporting a level of suspicion to further investigate and possibly to arrest, depending on the totality of the circumstances at hand.
12. How long does it take to go through a checkpoint?
We have timed the unloadings of the domestic-only ferries and have found that, at times when the checkpoint is not there, it takes about five to seven minutes for the last vehicles to disembark. Sometimes it can take a little longer, but not often. When the run is international, it takes a bit longer, usually about 15 minutes, sometimes less, occasionally a few minutes more.
We have also timed the checkpoint operations and have found that, about half the time, they add five to ten minutes to the regular disembarkation time. The rest have taken longer. The longest time thus far has added 30 minutes to the time, due, at least in part, to the congestion created when two ferries arrived within a few minutes of each other. The next two longest times added about 15 to 20 minutes to the disembarkation time.
13. Can the agents search me or my car at the checkpoint?
An agent can make a visual inspection of a vehicle insofar as what is ordinarily visible from outside the vehicle. If they see something that constitutes a clear and present danger to themselves or others, they may act immediately and without a warrant to protect themselves or others. Agents can also do a "walkaround" with a canine without a warrant to protect themselves or others. However, they may not search a vehicle without probable cause, consent or a warrant. The same rules apply, in general, to individuals in the vehicle, including the officer safety provisions. Additionally, the agent can require persons to exit the vehicle for safety purposes. Agents will also frequently make use of portable radiation detection equipment - it's entirely passive and unnoticeable unless activated.
14. What if I don't want to stop at the checkpoint?
Fleeing a checkpoint is a felony. 18 USC §758 states: "Whoever flees or evades a checkpoint operated by the Immigration and Naturalization Service, or any Federal law enforcement agency, in a motor vehicle and flees Federal, State, of local law enforcement agents in excess of the legal speed limit shall be fined under this title, imprisoned not more than five years, or both." State and/or local officials may also file additional charges at their discretion with respect to offenses committeed while fleeing the checkpoint.
15. What if I need more information or just want to talk to someone about this whole issue of checkpoints and my community?
Email Joe Giuiliano, the deputy chief at joseph.w.giuliano@dhs.gov Blaine Sector will also address recognized civic groups and organizations at legitimate forums. We are custodians of the public trust and you are entitled to know what we are doing and why.
Border Patrol Checks at Anacortes terminal
2-3 times a week for immediate future
By Sharon Kivisto
posted 03/12/2008
A family residing illegally in Friday Harbor for ten years was detained and is now in federal facilities in Pennsylvania awaiting deportation after not clearing a random Border Patrol check in Anacortes earlier this month. The random checks will be happening two to three times a week for the immediate future said Deputy Chief Patrol Agent of the Blaine Patrol Sector Joe Giuliano said.
The purpose of the enforcement action is to address the vulnerability to terrorism posed by the porous border in the islands. People can be dropped off illegally in boats or by plane and then enter the rest of the U.S. by ferry, Giuliano said. Similar checks on buses, airplanes, trains and ferries have been done in the Bellingham area for years.
"We'll establish a deterrent value," he said. "Then we'll do it often enough to be a reminder."
County councilmembers Alan Lichter and Howie Rosenfeld have expressed outrage that "citizens" have "disappeared" from the community. Rosenfeld asked Sheriff Cumming if it would be reasonable to ask Border Patrol agents to notify the county when someone was taken so the community. Cumming said the council could make the request.
Asked in the phone interview, Giuliano said the 1974 Federal Privacy Act prevented the Border Patrol from releasing the information. The officers do recognize the humanitarian needs of the people arrested and they are allowed to make an unmonitored call. "We realize sometimes the person they are calling is documentarily challenged," he said. At the detention center the arrestee can make as many calls as they want to. The person also has the right to contact the consulate of their official country of origin.
Another concern Rosenfeld had was the possibility racial profiling was happening. Giuliano, himself the son of immigrants, said, "It is simply not the case." People from more than 60 nationalities have been deported from the Blaine Patrol Sector.
"Agents are trained not to make distinctions on ethnic appearances, it never stands on its own," he said. "There are a number of indicators, a number of observations." For obvious reasons, he didn't list them. But in order to be detained, a person has to raise suspicions to a level of probable cause in order to be detained.
"You have to build upward," Giuliano said. "No where in there is ethnicity a factor." It's a diverse world we live in. We don't work that way. We do tend to run into and apprehend more hispanics because of the economic situation with Mexico." He said if we bordered Norway and it had the same economic situation as Mexico, they'd be arresting more Norwegians.
Hearing the concerns of the councilmembers, Giuliano said he would be happy to come to the island and explain the Border Patrol's actions. Councilmember Rosenfeld called Giuliano and he has been added to the March 18 council meeting agenda at 11:15 a.m. The council meets in the legislative building at 55 Second Street in Friday Harbor and the meetings are open to the public.
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