U.S. Customs and Border Protection (formerly known as the Border Patrol) is a federal law enforcement agency part of the Department of Homeland Security (DHS). The mission statement of the agency is to “protect the American people, safeguard… borders, and enhance the nation’s economic prosperity.” It attempts to achieve this goal by “counter[ing] terrorism, combat[ting] transnational crime, secur[ing] the border, facilitate[ing] lawful trade and protect[ing] revenue, and facilitating lawful travel.” It is important to note that the “CBP” was founded in 1924 and that several factors have led to its increasingly prominent role today.

To discover why the CBP was founded, it is necessary to return to the year 1862, the year of the Anti-Coolie Act. From the founding of our nation in 1776 until 1862, immigration was essentially unregulated, with practically anyone being able to enter and work in the country. Then, the Civil War came around, and, with it, fears amongst secessionists that slave labor would no longer be permitted. This led to a persistent search for an adequate replacement… that replacement being found in Chinese contract workers. The U.S. government observed this stratagem and thwarted it, passing what is now known as the “Anti-Coolie Act of 1862,” which prevented the importation of these individuals. This was an incredibly significant moment, for it was the first true anti-immigrant legislation, the first of, as you will see, a myriad of enactments.

 

Following the Anti-Coolie Act was the “Chinese Exclusion Act,” which rejected Chinese immigration for ten years (this included students, travelers, diplomats, teachers, and merchants). This, indubitably, was cruel and racist…with the law primarily coming to be as a product of the fears of white laborers. Of course, immigrants continued to flood into the country, many undocumented. The U.S. legal system was thus faced with the task of considering and determining the rights of those individuals.

One such case which represented the government’s stance on undocumented immigration was Chae Chan Ping v. United States. The Scott Act of 1888 had prevented resident Chinese laborers from coming back to the United States; the case of Chae Chan Ping proved that they meant business. Ping had left prior to the passage of the Act but returned after it had been signed into law, being denied access to his former home. He sued, and was unanimously ruled against, establishing that the judicial branch had incredible power over immigration law, shaping immigrant rights for years to come.

Another such case, also of critical importance when understanding the future role of the CBP, was Fong Yue Ting v. United States. Two precedents were set by the court that cannot be overemphasized. The court doubled down on their capacity to eject undocumented immigrants, asserting that power to be “absolute.” Furthermore, the court established that deportation was not a “punishment for a crime,” effectively rendering the Bill of Rights inconsequential, as their use by an individual could primarily only be triggered in cases of criminal punishment. Thus, a large swath of people could be (and were frequently) denied basic human rights that Americans received. Therefore, the court had defined this group as somehow different and inferior. This precedent set almost one hundred and thirty years ago still has a monumental impact to this day.

Thus, as briefly aforementioned, with mass immigration and the number of immigration laws rapidly expanding, the U.S. Border Patrol was founded (by President Calvin Coolidge in 1924). One of the most noteworthy aspects is just how small and somewhat mundane the order seemed for the time. It was mandated that over 500 guards would “patrol the Canadian and Mexican borders to prevent the unlawful entry of aliens into the United States” and that “Congress ha[d] provided $1,000,000 in addition to the amount recommended,” both seemingly straightforward and uncontroversial motions. It should be mentioned, however, that the term ‘alien,” is used in this legislation, once again doubling down on the notion that people punished were inherently different. It must also be acknowledged that, even one hundred years ago the government was allotting more money to the CBP than originally anticipated, foreshadowing government spending for years to come.

Given a wide array of powers, the U.S. Border Patrol had many options over whom to apprehend, for undocumented immigrants were coming into the country at a staggering rate. The chaotic nature of their job and the lack of direction over whom to detain (there were too many people to comprehensively perform their task) led to focusing on Mexican workers. It is likely not a stretch to analyze this decision as discriminatory, for the very same year the CBP was founded the Immigration Act of 1924 (also known as Johnson-Reed Act) was passed, openly favoring immigrants from Western Europe, who were thought of as more desirable. Consequently, immigration control principally concentrated on Mexicans, with the arrival of World War II and fears of invasion engendering apprehension on previously unseen levels. This would lead to the first moments of militarizing the CBP and ensuring undocumented Mexican workers were deported. The introduction of the Bracero Program in 1942 symbolizes this increasingly harsh system. The Bracero Program was meant to be a beneficial to both Mexican workers and the U.S. government and economy. Millions of Mexican men were allowed to legally work in the United States on short term labor contracts, with the intent being to rectify a labor shortage in the agricultural sector and there was mutual hope that this action would ease long-standing racial tension. There was some success in this regard… but it led both U.S. and Mexican authorities to be increasingly harsh on those who entered the country unlawfully. A massive increase in the number of those deported was witnessed… and it should also be noted that enduring racial tension did not dissipate, for Mexican workers still had their rights constantly violated, with Braceros often facing surcharges for room and board, unconstitutionally low wages, and dangerous working conditions.

To re-emphasize the growing militarized tendencies of the CBP, Operation Wetback, a campaign undertaken in 1954 that deported immigrants at a shocking rate, must be acknowledged. Operation Wetback was created as a product of the concerns of white farmers, returning soldiers, and businessmen. This mass deportation, was included some American citizens, cruelly rounded up hordes of people at a time and transported them back to where they came from. Members of the Border Patrol endorsed the success of the procedure, despite the organization dramatically overreporting how many people they actually deported (although it was quite a few). This moment is incredibly historically relevant as it serves as a model for some as to how immigration control should be conducted today.

To fully grasp immigration law and how it has changed over time in this country, it is necessary to briefly analyze the Immigration and Nationality Act of 1952. Introduced by senator Pat McCarran (the chairman of the Senate Judiciary Committee) and Francis. E Walter, the Act vitally abolished racial restrictions found in U.S. immigration and naturalization statutes. With that being said, coming on the heels of the Second Red Scare (a multitude of people were scared of the rise of Communism), a quota system for nationalities and regions was still maintained. This Act reinforced “desirable” immigrants, who, somewhat predictably, were still, for the most part, not of Asian descent. This was only seventy years ago, representing the inherent biases that pervade our country even today. Still, with the rise of the civil rights movement, the status quo did not last forever, with the Immigration and Nationality Act ultimately being amended in 1965.

- https://congressional-proquest-com.proxy.lib.umich.edu/congressional/docview/t53.d54.00066-stat-0163-082414?accountid=14667

The Immigration and Nationality Act of 1965 effectively abolished much of the policy that had dominated U.S. immigration law for over a hundred years (since the Naturalization Act of 1790). The national-origins quota was eradicated and established a seven-category preference system-which determined who was most likely to obtain a U.S. visa. Professionals and people with specialized skills as well as relatives of U.S. citizens were prioritized, as well as legal permanent residents. It should be stated that, in the seven-category system, refugees had last priority… indicating how they would be treated by the U.S. government and the CBP for years to come.

- https://congressional-proquest-com.proxy.lib.umich.edu/congressional/docview/t41.d42.89_pl_236?accountid=14667

Immigration has been the main topic so far in this history of the CBP-and it will, of course, be necessary to return to it; however, it is now time to turn to drug control, which has become a greater part of the CBP’s responsibility over time. To understand the augmented role the CBP has played in the war on drugs, the Boggs Act of 1951 is a good place to start. Inspired by Louisiana Democrat Hale Boggs, mandatory sentences (of at least two years) were enacted for marijuana possession, and a fine of up to $20,000 could be imposed. Though the government had previously taken a strict no-nonsense approach to marijuana possession and distribution, the Boggs Act reinforced this animosity and societal ostracism towards offenders.

The Narcotics Control Act of 1956 took the precedent set by the Boggs Act and the prior Uniform Narcotic Drug Acts and essentially ran with the punitive platform on illicit drug use. Heavier penalties were instituted, including the death penalty and life imprisonment. The importance of this cannot be overstated with regard to the CBP. The arrest and conviction of peddlers was particularly accentuated and members of the CBP were mandated and inspired by the government to carry out their duty. After all, Congress had given them new authority (in 1955, Congress made all Border Patrol Agents customs inspectors). The Border Patrol became the main body that would seize drugs at official ports of entry to the country. Remember, this occurred during the middle of the 1950s, which coincided with many of those part of the Bracero program being removed from the country. The Cold War (and anti-communist sentiment) was also at its peak, meaning that anti-foreign sentiment was rampant. The Border Patrol was, predictably, not immune to the isolationist attitude pervading the country. The United States Immigration and Naturalization Service (The INS- the parent company of the Border Patrol until it fell under newly created Department of Homeland Security in 2003) began using incredibly extreme tactics in their immigrant detention facilities. This included strip-searching those who entered the facility-representing the dramatic increase in power of the Border Patrol. It also demonstrates that the Reagan Era was not the moment in which the country “got tough” on drugs-that had been occurring for decades.

Though the role of the Border Patrol had been gradually expanding since its inception, the Anti-Drug Abuse Act of 1988 made their job even busier-in a sense, it demonstrated, undeniably, that immigration control, crime control, and drug control were intertwined. The Act principally addressed crack cocaine, but it also created a list of felonies that could get immigrants kicked out of the country immediately-even for an offense decades prior. Therefore, the Border Patrol would become more engaged, with a host of new people eligible for deportation.

The Border Patrol’s enlarged role has been stated-but the 1986 Immigration and Control Act really reinforces this notion. Firstly, the legislation authorized a 50% increase in Border Patrol staffing-with it also creating two legislation programs concentrating on undocumented immigration. The Act allowed unauthorized immigrants living in the US since 1982 to regularize their status and additionally made it possible for workers in specific agricultural jobs who were working upwards of ninety days to apply to be permanent residents of the country. Given this legislation, laborers often predictably attempted to enter the country, work, and become a permanent citizen… which led to increased immigration enforcement and expanded duties for the Border Patrol.

Going back to crime briefly (although, as aforementioned, crime, drugs, and immigration reform are interknit), the 1994 Violent Crime Control and Law Enforcement Act must be mentioned as it is heavily related to the Border Patrol. This piece of legislation was very influential-it strengthened penalties for alien smuggling and for those who illegally reentered the country after deportation. This expanded the searching abilities of the Border Patrol and further increased the number of people it was responsible for monitoring, detaining, and deporting.

It is also certainly worth mentioning the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, which was especially punitive. The Act was ruthless; any conviction of one year or more could get an immigrant deported, whether legal or undocumented. Indeed, IIRIRA has made it so that an individual who overstays their welcome by one day loses the privilege of potentially obtaining a new nonimmigrant visa.

Contemporary policy has seen, for the most part, a continuation of the status quo that favors an anti-immigrant policy with racist undertones. Consider the Secure Fence Act of 2006 under the second Bush administration, which called for the construction of hundreds of miles of additional fencing along the Southern border. This legislation was put in place to utilize modern methods to prevent undocumented individuals from crossing the border. Those ‘modern methods’ would include the use of camera, satellites, and unmanned aerial vehicles to help secure the border. Of course, despite illegal border crossings happening on the northern border of the United States, construction of a fence there has never been considered, which should prompt consideration into what biases are present in the system. It should also be noted that the success of the fence in stopping undocumented border crossers has been absent. Individuals have simply found alternate areas to cross.

Before getting to the policies and actions of the most recent presidential administrations, one court case pertaining to the CBP needs to be recognize-that would be Reno v. Flores (1993), a case that went to the Supreme Court and detailed the detention and release of unaccompanied minors. Jenny Lisette Flores, 15 years old, struggled to cross the US-Mexico border but was apprehended by Border Patrol agents and subsequently subject to harrowing conditions seen in many of the detention facilities by the border (which included being strip searched). The controversy of the issue (other than the obvious rough treatment of a 15-year-old) was the Immigration and Naturalization Service’s policy pertaining to the discharge of unaccompanied foreign minors. Specifically, the Supreme Court analyzed whether or not the regulations violated the “Due Process” clause, coming to the conclusion that they did not. What makes the case special (there have been many of similar nature) is the 1997 court-stipulated settlement agreement that occurred as a product of the case. The Flores Settlement Agreement (FSA) has created rules and regulations that attempt to ensure the humane treatment of minors in detention facilities. This was highlighted by the federal government’s promise to release children from immigration in an efficient and punctual manner, and guaranteeing that, while in custody, children would immediately be given the opportunity to contact family members. Indeed, Reno v. Flores continues to make a significant impact today, with Donald Trump attempting to modify the Flores settlement with the goal being to keep families together at the border. Later, however, the Trump administration tried to bolster their ability to detain migrant children for indefinite periods of time… that move being deemed unconstitutional by U.S. District Court Judge Dolly M. Gee. Regardless, given that the Supreme Court ruled in favor of the INS, it is clear that, generally, punitive policy at the border is tolerated and often supported, rendering the CBP as busy as ever.

Considering Barack Obama’s predominantly liberal agenda, one would think he would not only reduce the power of the CBP but perhaps criticize it as well. This was not the case. Upon becoming president, Obama promptly met with President Felipe Calderon to commence talks in partnering to improve border security. They would aim their efforts at reducing the flow of drugs and weapons. To do this, Obama allocated $600 million through a border security bill that would toughen border security. This involved the hiring of 1,000 CBP agents and placed 1,200 National Guard troops on the border. Thus, clearly, the militarized nature of the CBP, constantly growing throughout the 20 th  century, had not changed…if anything, Obama was reinforcing what he saw as righteous. In addition to manpower, Obama allotted $68 million to the CBP, expanded Immigrations and Customs Enforcement, and provided additional funds for improved technology and operations. Obama’s actions confirm a conspicuous trend-that militarized and punitive measures concerning crime, drugs, and immigration is not a partisan issue. Ronald Reagan, a republican, is often credited with launching the war on drugs (as proven by earlier components of this memo-that is not true), Bill Clinton signed the 1994 Violent Crime Control and Law Enforcement Act, and Obama spent more money than any previous president on border security and immigration control. Both parties have supported these measures. With that being said, Obama has attempted (on many occasions) to protect immigrants. Recognizing the impossibility of deporting all undocumented immigrants, Obama sought to focus on deporting violent offenders. He also desired to pass the DREAM Act (this stands for Development, Relief, and Education for Alien Minors) which would have safeguarded certain immigrants who had come to the United States but were susceptible to deportation. Indeed, eleven versions of DREAM Act have been proposed in Congress, but none have become law (there has been bipartisan support… but not enough). This would lead to Obama’s creation of the DACA program (Deferred Action for Childhood Arrivals), which he did through an executive order. The DACA Program centered around allowing qualified individuals to obtain work permits if they did not have felonies or serious misdemeanors on their record. This would only apply to those who entered the country as youth or adolescents.

Obama, of course, had those who opposed his policies, that will be covered but only after delving into the Trump and Biden presidencies. Given Trump’s desire to build a border wall, it is pretty obvious that he was very much in favor of punitive and militarized policy continuing. In order to make border policing more hands on, Trump would sign into law the “INTERDICT Act,” which required the CBP to “increase the number of chemical screening devices used to interdict fentanyl and other narcotics illegally imported into the United States.” He would also augment border security by mandating the addition of 5000 CBP agents through one of his very first executive orders (Executive Order 13767-also known as “Border Security and Immigration Enforcement Improvements”). Overall, like previous presidents before him, Trump hyped up the dangers of illicit drugs and endorsed the need for the CBP with urgent rhetoric. He claimed the CBP was “desperately needed,” and that dogs were dying from “just the scent” of supposedly powerful new drugs. All in all, Trump was on a mission to stop anything or anyone “illegal” from crossing the border-which led to the CBP being more pre-emptive and hands on in their policing than ever.

Biden, being a close ally of Obama, has predictably tried to adopt similar positions. He immediately ceased the construction of the border wall. He also endeavored to end the “Migrant Protection Protocols” introduced by Trump (legislation that made it so those seeking asylum at the southern border would appear in immigration court and be subsequently sent back to Mexico). He did terminate this program but a federal court in Texas ordered the DHS to reinstate the policy, and, since December 6, 2021, that Trump era policy has mostly stuck. Biden has reversed the trend of an alarmingly large number of children in the custody of the CBP. Additionally, of great significance, is Biden’s proposed U.S. Citizenship Act of 2021, which would theoretically provide a path to citizenship for as many as 11 million undocumented immigrants. In terms of drug and crime control policy, Biden has taken a more rehabilitative route than either Obama or Trump, introducing the American Rescue Plan, which alotted $3 billion to address mental health and substance abuse. Still, Biden has the CBP as active as ever on the border, especially in his crusade to curb the spread of fentanyl.

Obviously, it is important to look at the key players that have influenced the Obama, Trump, and Biden eras. Specifically, it is crucial to evaluate who continually pushes for these strict policies. Firstly, it should be stated that, once again, there is a predominantly bipartisan consensus today on some border issues in 2022; 73% of Americans believe that increasing security along the U.S-Mexico border to reduce/eliminate undocumented individuals from crossing is either a “very important” or “somewhat important” issue. This includes 91% of Republicans and Independents and 59% of Democrats. Still, the two differ as well. Eighty percent of Democrats believe it is important to find a path for undocumented immigrants to stay legally in the country… in contrast to only 37% of Republicans. Thus, when trying to understand who pushes for these strict policies, it is predominantly Republicans in Congress… acting on their own beliefs and the will of their voters. As shown by Obama’s failure to get any one of his eleven versions of the DREAM Act, this is, in a sense, a non-negotiable issue. Obama’s punitive policies were actually inspired by the desire to prove to his Republican colleagues that he could tough on “illegal” immigration, drugs, and crime…and, despite doing exactly this, Obama still did not get Republicans in Congress to support his attempted immigration reform. It is hard to envision the gap on immigration policy closing any time soon. Another group/entity in favor of the current (punitive) status quo, are members of the CBP themselves. The Border Patrol Union endorsed Donald Trump in early 2016 when he was not even the president yet… the first time they had ever endorsed a presidential candidate during the primaries of a campaign. The Border Patrol Union does not represent every employee of the agency but the resounding support for Trump demonstrates that officers felt limited by what they could do under Obama. It also reflects the fact that they do not want the public to observe their work as unneeded.

Before looking at advocacy groups (such as the ACLU) that have condemned practices under each recent administration, defining what the CBP does today is still important to do. It consists of over 58,000 employees that have a variety of responsibilities, including inspecting passengers and items at ports of entry, collecting taxes from tariffs and trade, identifying terrorists, preventing the importation of illicit narcotics and weapons, and patrolling the Canadian and Mexican borders. The largest number of agents scrutinize cargo and patrol the border. A few of the special powers claimed by CBP officers include the ability to conduct “warrantless search[es]” within 100 miles of the border, which, controversially, means they could search over half of the U.S. population if they wanted to. It should also be noted that food shipments are also thoroughly examined by the CBP in order to prevent agro-terrorism and bio-terrorism. There are a few other actions the CBP administers, but most of them involve other agencies and will thus be disregarded.

As aforementioned, a myriad of advocacy groups disapprove of the CBP and how they have been used under recent administrations. In 2013, the ACLU of Arizona and the ACLU of San Diego created the Border Litigation Project that would “investigate, document, and litigate civil and human rights cases in the U.S.-Mexico border region, including abuses committed by U.S. Border Patrol. The excessive use of force has especially been focused on by the Border Litigation Project, which identified “at least thirty-nine individuals since 2010, including unarmed teenagers, alleged rock throwers, U.S. citizens, and individuals standing in Mexico.” Indeed, in Rodriguez v. Swartz, a border patrol agent was indicted for second degree murder (he shot Jose Antonio Elena Rodriguez, a 16-year-old boy, ten times), the “first time a Border Patrol agent ha[d] been federally for murder.”

The ACLU has also criticized the housing that holds thousands of individuals at the border, considering those confined to be “packed into freezing, dirty, and overcrowded cells… [and also] denied basic necessities.” For this reason, as they often do, the ACLU filed lawsuits, one such being Doe.v Johnson, which hoped to demonstrate that the Due Process Clause of the 5 th  amendment was being violated.

Furthermore, the ACLU has noted “the militarization of border communities,” the presence of “roving patrols and trespassing,” and “Racial Profiling by Local Police.” They predictably condemn the “100-Mile Border Zone” policy, which they view as instilling terror in residents through unconstitutional searches. The ACLU has also observed cases in which individuals were stopped without “reasonable suspicion,” and look with mistrust at the fact that the agency “does not record any information related to stops not resulting in arrest-making it impossible to know how many innocent travelers are stopped,” an objectively valid point. The organization additionally denounces the CBP for not respecting the constitutional rights of individuals at ports of entry, having observed verbal and physical abuse.

The ACLU is not the only advocacy group that has castigated the CBP. The American Immigration Council and Human Rights Watch are obviously important parts of this discussion as well. The American Immigration Council hopes to create a more “humane immigration system,” and aid asylum seekers as well. The Human Rights Watch mimics the American Immigration Council and the ACLU in attempting to not only engender reform on “harsh, outdated, and ineffective detention,” but also in the effort to be a voice for those who do not have one.

Thus, there seem to be three definable sides to this issue. Republican members of Congress, most Republican citizens, and the CBP itself would all support the augmented power given to CBP agents and view the stoppage of all undocumented immigration (and the removal of most undocumented immigrants currently in the country) to be absolutely necessary. There are also those with more moderate policies, like Obama. The former president sought to alter components of the system in place but not outright reform it. Biden’s policies are definitely more liberal, but it is also clear that he would not be willing to get rid of the CBP. This would likely be the mentality of most Democratic lawmakers and Congressmen. Then, we have the viewpoint of organizations like the ACLU, The American Immigration Council and the Human Rights Watch. These three organizations would be content to see the CBP disband entirely, believing their practices to be unconstitutional and excessively harmful to millions of people. Though some of the aforementioned beliefs seem quite radical (in both their conservative and liberal policy), millions of Americans sympathize with each position, meaning that we must respect each. As aforementioned, most Americans agree that undocumented immigration and the flow of weapons and drugs across the border are important issues. That is, after all, why punitive measures have rapidly grown in recent years. Yet, it has also become clear that undocumented immigration will not go away. The percentage of immigrants making up the U.S. population, both legal and undocumented, is higher than ever, with almost a quarter of our foreign-born population being unauthorized immigrants. Refugees continue to enter the country, desperate for asylum and a better life. Immigrants continue to play an integral role in our workforce. They are not going away (nor should they). We are a country of immigrants-and we need to embrace that. As proven by advocate groups and repeated studies, the current CBP does not fully embrace that truth. If they are not willing to alter some of their most detrimental practices, their agency must be terminated. If they are able to embrace the law and value the constitutional rights that once made this country unique, then they can and should be worked with… to create a better and more just future. With that being said, even if CBP officers behave perfectly… reform is still necessary. The “100-Mile Border Zone” policy is ridiculous and should be abolished-it gives the CBP a range of powers that no one should have. Additionally, the intense monitorization of the border and funding of the CBP must be scaled back. There are too many drugs, weapons, and people to stop- it is an impossible task. Thus, we must look at other aspects of law to reform… such as the 2 nd  amendment and increasing funds for drug rehabilitation (not incarceration). The tens of thousands of workers that make up the CBP cannot solve our problems. It is time we recognize that.

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Trump, Donald J. "Remarks on Signing Legislation to Combat International Narcotics Trafficking." Last modified January 10, 2018. https://www.presidency.ucsb.edu/documents/remarks-signing-legislation-combat-international-narcotics-trafficking.

 

 

 

- https://congressional-proquest-com.proxy.lib.umich.edu/congressional/docview/t53.d54.00066-stat-0163-082414?accountid=14667

- https://congressional-proquest-com.proxy.lib.umich.edu/congressional/docview/t41.d42.89_pl_236?accountid=14667