On June 8, the U.S. Supreme Court issued a ruling, following the case of Egbert v. Boule, that makes it more difficult for civilians within 100 miles from the U.S. border to seek compensation for the invasion of privacy or damages from searches and seizures. In general, most warrantless searches of private premises are prohibited under the Fourth Amendment of the U.S. Constitution. It is only through specific applicable exceptions that warrantless searches are allowed: instances where warrantless searches are conducted with consent, if the search is incident to a lawful arrest, if there is probable cause to search and there are exigent circumstances calling for the warrantless search.
These basic constitutional principles do not fully apply at the borders. In 1952, the Immigration and Nationality Act gave border security certain additional authorities. Within a “reasonable distance” or 100 miles from the U.S. border – a huge segment of the country predominantly occupied by racialized and marginalized communities – federal authorities do not need a warrant or even suspicion of wrongdoing to conduct searches at the border to prevent illegal entry into the U.S.
Closer to the border, however, within a distance of 25 miles, the law gives agents some additional access to private lands, but not dwellings, for the purpose of patrolling the border to prevent illegal entry into the U.S. The law explicitly prohibits Border Patrol agents from entering homes without permission, a warrant or probable cause.
In Egbert v. Boule, Robert Boule alleged that border agent Erik Egbert violated his Fourth Amendment rights by coming onto his property without permission and then attacking him when he protested. The 6 to 3 conservative majority ruled that Boule’s claim did not fall within that framework: making it almost impossible to win a Bivens action. The justices placed the responsibility on Congress; this was intentional, serving the ultimate goals of expanding deportations and decreasing pathways to lawful immigrant status and citizenship.
The case does not involve the Immigration and Nationality Act or the actual rules governing search and seizure near the U.S. border in any substantial way. However, by severely limiting the power of Bivens actions, the court further restricts options for recourse for citizens whose constitutional rights may have been violated by federal agents.
The court’s ruling did not say that within the 100 mile zone Border Patrol agents can enter homes without a warrant or use excessive force however they see fit. What the court did say, is that if this happens, citizens will not have Bivens action to remedy the damages. This particular remedy can serve as a strong deterrent and can function as an essential mechanism to hold officers accountable. Without it, the Fourth Amendment fails to provide any substantial protection: especially for those of racialized communities.
Roughly two-thirds of the United States’ population and 72% of the U.S. global majority population live in the 100 mile zone. Some of the highest concentrations of racialized peoples are in areas where Border Patrol presence is the heaviest. Cambodian Americans experienced a 279% increase and Vietnamese Americans a 58% increase in deportations between 2017 and 2018 alone. As of June 2018, 43% of Vietnamese detained had lived in the U.S. for over two decades; the percentage of Lao and Cambodian are even higher at 86% and 75% respectively.
In practice, Border Patrol agents routinely ignore or misunderstand the limits of their legal authority. These problems are compounded by inadequate training for Border Patrol agents, a lack of oversight by Customs and Border Protection and the U.S. Department of Homeland Security and the consistent failure of CBP to hold agents accountable for abuse.
This federally sanctioned expansion of border control is part of a movement towards expanding police and national security powers without regard to the effect of such expansion on our most fundamental constitutional rights. If we do not continue to challenge these intrusive federal systems, we risk forfeiting our fundamental rights and freedoms.