The following questions have been frequently asked regarding Border Patrol operations, at the Washington State Department of Transportation Ferry System terminals. Certainly, these cannot represent the only questions—additional discussion is encouraged. The sector’s staff remains available for individual inquiries as well as ‘townhall’ meetings in appropriate public forums.

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 assimilation 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 the 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.

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.

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 §1401(i). This discussion will focus on the subsections that are most relevant to ferry operations.

8 USC §1225(d)(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.”

8 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 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) “to make arrests for felonies which have been committed and which are cognizable under any law of the United States regulating the admission, exclusion, expulsion, or removal of aliens…if there is likelihood of the person escaping before a warrant can be obtained…;” and,

…(5)…

(A) “for any offense against the United States, if the offense is committed in the officer’s or employee’s presence, or

(B) 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.”

Although these laws seem to give Border Patrol agents rather broad authority, they have been tempered by court decisions and federal regulations. Some of these limitations on the exercise of authority are discussed in other FAQs later in this document.

It is important to note that references to entry into the United States have been held to also include a concept known as “furtherance of entry,” that is to say that an illegal entry is considered to be a continuing act—it does not end immediately after the geographic border is actually crossed. “Reasonable distance from any external boundary” has been interpreted somewhat differently by various courts. Many have applied the distance of 100 air miles specified in federal regulations; others have applied a concept of “functional equivalency” to the border, rendering decisions varying from 65 to over 200 miles. One concept on which all have agreed is that ferries are “vessels,” and are thus covered under the cited authorities.

Additionally, Border Patrol agents have a limited drug enforcement authority by virtue of a memorandum of understanding with the Drug Enforcement Administration (DEA), pursuant to 8 USC §1357(a)(5)(A).

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 on a highway 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 set of procedures and legal parameters. Therefore, we will use the word “checkpoint” in referring to the ferry operations, as this is what they effectively are.

Border Patrol checkpoints are places on 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 much greater frequency.

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 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.

Why did the Border Patrol choose to run a checkpoint recently at the WSDOT ferry terminal at Anacortes, Washington?

Blaine Sector is aware of a number of incidents in which persons and/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.

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.

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 terminals, as well as on border area highways.

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 there is no suspicion as to your right to be or remain in the United States, 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.

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.

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 articulable fact supporting a level of suspicion to further investigate and possibly to arrest, depending on the totality of the circumstances at hand.

How long does it take to go through a checkpoint?

We have timed the unloadings of the domestic-only ferrys 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.

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 or probable cause. 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.

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 other Federal law enforcement agency, in a motor vehicle and flees Federal, State, or 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 committed while fleeing the checkpoint.

What if I need more information or just want to talk to someone about this whole issue of checkpoints and my community?

Call (360) 332-9202. That line is the direct line to the deputy chief. Or e-mail him 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.

This Act (26 Statutes-at-Large 1084) administered all immigration laws except the provisions of the 1882 Chinese Exclusion Act (22 Statutes-at-Large 58).

The Act specifies “…Canada, British Columbia and Mexico…,” notwithstanding the fact that British Columbia joined the Canadian Confederation in 1871.

43 Statutes-at-Large 153.

43 Statutes-at-Large 240.

In virtually every jurisdiction across the nation, citizens have an authority to act decisively to prevent imminent death of, or bodily injury to another. Under specific circumstances, citizens may also make a ‘citizen’s arrest.’

CBP Directive 4510-016A.

This seemingly unbridled authority has been more acutely defined by various court decisions. These decisions made significant distinctions between “roving patrol stops” and “traffic checkpoints” and will be discussed in the succeeding questions/answers.

These citations are excerpts from the INA. The full texts are available in most any library or online. An excellent resource is http://www.law.cornell.edu, Cornell University Law School’s Legal Information Institute.

8 USC 1357(e) specifically excludes areas where outdoor agricultural operations are being conducted—the former “open fields doctrine” under the INA. Warrants are required for such entry for interrogation purposes.

Please note the distinct difference between this authority and that conveyed by 8 USC 1225(e). This authority pertains to preventing the entry of aliens whereas 1225(e) targets the smuggling of aliens.

The Blaine Sector is responsible for the 19 westernmost counties of Washington (all west of the crestline of the North Cascade Mountains, as well as the entire states of Oregon and Alaska.

After the Blaine Sector—then the Lynden Sector—opened just 3 weeks after the Border Patrol was formed in 1924, traffic checkpoints became an integral part of operations with tactical checkpoints being a common site along the Pacific Highway and later US-99. These operations diminished in frequency in the post-World War 2 era, becoming very infrequent until the post-9/11 era under DHS.

U. S. v. Brignoni-Ponce, 422 U. S. 873 (1975). The language of 8 USC 1357(a) notwithstanding, the courts have properly held that no act of Congress can authorize an abridgement of constitutional rights, particularly the protections against unreasonable search and seizure.

Most notably, U. S. v. Martinez-Fuerte, 428 U. S. 543, 556 (1976). This decision provided the authority to conduct primary and secondary inspections as well as validating that warrants were not needed at checkpoints.

U. S. v. Soto-Camacho, 58 F.3d 408 (9th Circuit, 1995).

Border Patrol agents cannot enforce state driving laws. This is mentioned only as a matter of logical conclusion.

8 USC 1304(e) makes this offense a misdemeanor. Border Patrol agents can issue a citation for this violation or take the violator into custody upon approval of prosecution by the United States Attorney.

Border Patrol Ferry Operations —

Frequently Asked Questions

PAGE 2 Blaine Border Patrol Sector Public and Media Affairs

(360) 332-9200 / http://www.borderpatrol.gov

U. S. CUSTOMS AND BORDER PROTECTION

BORDER PATROL

Blaine Sector Headquarters (360) 332-9202

2410 Nature’s Path Way Joseph W. Giuliano Fax: (360) 332-9258

Blaine, WA 98230-9156 Deputy Chief Patrol Agent joseph.w.giuliano@cbp.dhs.go