Unspeakable Acts

by Sarah Weinman

  She was taken to a fluorescent-lit, windowless room inside the port of entry office. Two female officers entered and announced that they were going to search her for drugs. They patted her down again, but found nothing. At that point, Sandoval assumed they would release her, but instead they told her they were going to conduct a strip search. The officers put on latex gloves, picked up flashlights, and asked Sandoval to remove her clothes and bend over so they could look for signs of drugs in her vagina and rectum.

  By the time they finished, Sandoval had been detained for more than two hours in the stifling room. Her passport and cell phone had been confiscated; her husband and children had no idea where she was. Sandoval begged to be released. “I was shaking and I was in tears,” she told me. Saying nothing, the officers put her in handcuffs and led her to a patrol car waiting outside. They left the international bridge and drove north into Texas. Frightened, Sandoval asked the officers if they had a warrant for her arrest. “We don’t need a warrant,” one of them replied.

  CBP IS THE AGENCY TASKED WITH GUARDING AMERICA’S borders, as opposed to Immigration and Customs Enforcement (ICE), which investigates, arrests, and deports undocumented people throughout the country. Over the past 18 months, as resistance to President Trump’s immigration crackdown has grown, most of the criticism has been directed at ICE, whose interior enforcement mission often targets long-term residents without criminal records. Immigrant rights groups have begun a campaign to defund or abolish the agency. “ICE is terrorizing American communities right now,” Angel Padilla, national policy director of the Indivisible Project, told the Nation. “They’re going into schools, entering hospitals, conducting massive raids, and separating children from parents every day.”

  Increasingly, Padilla’s description applies to CBP as well. It turns out that the legal definition of “the border” is troublingly broad. Some 200 million people—nearly two-thirds of all Americans—live within the “border zone,” which is defined by the Department of Justice as the area up to 100 air miles from any US land or coastal boundary. Nine of the country’s 10 largest cities lie within the zone. It touches 38 states and encompasses all of Connecticut, Delaware, Florida, Hawaii, Maine, Massachusetts, Michigan, New Hampshire, New Jersey, and Rhode Island.

  Within the border zone, Congress has granted CBP powers far beyond those of other law enforcement agencies. CBP, which largely consists of customs officers at ports of entry and Border Patrol agents who monitor the highways, has the authority to set up checkpoints almost anywhere within the 100-mile zone, and to search and detain people without a warrant as long as they feel they have “probable cause” to suspect that someone is in the country illegally or smuggling contraband. The Fourth Amendment of the Constitution protects citizens from “unreasonable searches and seizures,” but CBP operates with wide discretion, often using alerts from dogs as a reason to pull people aside for secondary inspection. Within 25 miles of any border, Border Patrol agents have even more expansive powers; they can enter private land without a warrant or the owner’s permission.

  Being a US citizen doesn’t protect you from harassment by CBP. Even if you never leave the United States, you can encounter Border Patrol at the 35 fixed checkpoints and dozens of temporary checkpoints they operate deep in the interior. The locations of these checkpoints are not made public, but the Cato Institute, a libertarian think tank, has developed a project to track them. In a recent report, Cato mapped checkpoints as far as 80 miles from the border.

  Agents at these checkpoints interact with more than 27 million people annually, the vast majority of them US citizens or legal residents, and conduct thousands of searches and seizures. Latinos in particular are routinely stopped and searched, in what has come to be known as the “Southwest stop-and-frisk.” Over the past 10 years, advocacy groups have seen complaints about harassment and abuse at these checkpoints rise, and they have raised concerns that CBP is slowly creeping farther into the interior of the country. “In court cases, we’ve seen roving patrols 200 miles beyond the border,” said Chris Rickerd, a policy counsel at the American Civil Liberties Union. “People are surprised to see CBP in Los Angeles or in Houston, but it’s a consequence of the agency not having any limits.”

  A CBP spokesperson, responding to written questions, insisted that Border Patrol does not have significant operations in major coastal cities north of Los Angeles or in the Mid-Atlantic region. “We are a border security agency, not an interior enforcement agency,” she wrote. But she also noted that CBP’s activities “are not geographically restricted by law.” Even beyond the border zone, the spokesperson asserted, Border Patrol agents have the authority to question individuals and make arrests.

  Any political coalition seeking to reform immigration enforcement in the United States will not only have to rein in ICE; it will also have to halt CBP’s inward expansion and push its agents back to the borders. But Trump has emerged as the agency’s greatest defender. He has pledged to add 5,000 more Border Patrol agents to the force while signaling with his rhetoric about “bad hombres” and “animals” how they should treat those they stop.

  IN MARCH, I MET SANDOVAL AT A SMALL CAFE IN DOWNTOWN Albuquerque, New Mexico. A slender woman in her 50s with pale green eyes, Sandoval wore a tailored gray business suit and sat down apprehensively at a table in the corner. Before our interview, she had never spoken publicly about her experience with CBP.

  Sandoval, whose name has been changed to protect her privacy, told me that after the officers forced her into the squad car, they drove her to University Medical Center, a public hospital in El Paso. The officers found an empty room and shackled her to the examination table. A nurse entered and asked her to swallow a laxative so they could observe her bowel movement. Then a group of doctors came in. Sandoval pleaded with them to let her go. “A nurse told me to calm down,” she said. “That this was something they did any time Border Patrol brought people in.” One of the doctors conducted a vaginal and rectal search using a speculum and his hands. “The agents kept saying that they knew I had drugs,” Sandoval told me. Still not satisfied, the doctor ordered an X-ray and a full-body scan. Again they found nothing. “The only thing left was to cut me open,” Sandoval said.

  After more than four hours, the officers called off the search. One of them asked Sandoval to sign some government forms. “She wanted me to give my consent,” Sandoval explained. “She said that if I signed the papers, they would take care of the hospital bill. They would be ‘good guys’ and pay, because it would be expensive.” Sandoval pushed the papers away.

  Finally, the officers drove her back to the bridge. At the port of entry, a third officer tried again to persuade her to sign the consent forms. He let her smoke a cigarette. “He said I probably needed it after what I’d been through.” Sandoval still refused to sign. By the time she got back to her car, it was eight o’clock at night—six hours after her encounter with CBP began.

  Sandoval tried to forget about what had happened to her. She figured it would be too costly to fight the government. But then the bills from the hospital started to arrive. For the cavity searches, the X-ray, and the CT scan, the hospital was charging her $5,488. “I pay all my bills, but I was not going to pay these,” she told me. “So I started looking for a lawyer.”

  Sandoval went to the ACLU to seek help with her medical bills, and they agreed to take her case. Edgar Saldivar, a staff attorney, explained to her that CBP appeared to have violated its own policies. CBP mandates that body cavity searches, which must be conducted by medical personnel, be ordered only “under the most exceptional circumstances,” and requires agents and officers to obtain a warrant from a judge, or a person’s consent. “It still baffles me why they kept going even though each exam came out negative,” Saldivar told me. “My client feels she was a victim of sexual assault.”

  In December 2013, the ACLU filed a civil suit on Sandoval’s behalf against the customs officers and the hospital staff who had conducted the exams. From int
erviews the ACLU conducted with hospital staff, Saldivar got the sense that what had happened to Sandoval wasn’t out of the ordinary. “The reaction of the nurse was that these kinds of searches were normal,” he told me. “The doctors felt compelled to follow the orders of the law enforcement officers with guns.” CBP says that only 21 such searches were carried out nationwide in 2016, the most recent year for which complete data was provided, but Saldivar suspects that many others have experienced similar searches and are too ashamed or traumatized to come forward.

  Even though CBP has a policy requiring that records be kept of all body cavity searches, the agency said it had nothing to send me when I filed a FOIA request for drug searches that did not result in an arrest, detention, or deportation. That admission suggests that, in fact, the agency does not keep consistent records of searches like Sandoval’s, which turn up nothing. “There’s just no telling how many other illegal searches of American citizens go unreported,” Saldivar told me. “We have no way of holding CBP accountable.”

  THE LAW THAT GIVES CBP ITS EXTRAORDINARY CONTROL over the lives of Americans, documented and undocumented, was in part a response to Cold War paranoia. In the first half of the 20th century, the United States employed fewer than 1,600 border agents, almost all of them stationed along the perimeter of the country. But in the mid-’40s, fear of a communist invasion began to grow in the nation’s capital. At the White House, President Truman ruminated on the Soviet threat in his personal diary: “The Reds, phonies and the Parlor Pinks seem to be banded together and are becoming a national danger,” he wrote. “I am afraid they are a sabotage front for Uncle Joe Stalin.” In the summer of 1946, Congress passed legislation giving federal border agents the “power without warrant to arrest any alien who in his presence or view is entering or attempting to enter the United States.” The authority would extend “within a reasonable distance from any external boundary of the United States.” Congress did not define at the time what it meant by a “reasonable distance.”

  Border agents would soon use this new authority, but not against communists. During the Second World War, thousands of Mexican farm laborers had been brought to the United States under the Bracero Program, a binational agreement aimed at providing a much-needed supply of agricultural workers during the wartime boom. Many Mexicans not authorized to enter the United States also crossed the border looking for work. Less than a decade later, as a recession hobbled the US economy, these unauthorized workers became convenient political scapegoats. In 1954, President Eisenhower appointed a retired general, J. M. Swing, to run what was then called the Immigration and Naturalization Service and look into the illegal immigration problem. In his first report to Congress, Swing compared the migration of undocumented Mexicans across the border to an “invasion” and warned of “mounting waves of people, always reaching further inland with each incoming wave.”

  A year earlier, the Department of Justice had adopted the regulation that defined a “reasonable distance” as up to 100 air miles from the border. Swing proposed that a permanent “special mobile force” of border agents be dispatched by land and air to carry out mass deportations of Mexicans. The mission grew out of Operation Wetback, during which Latino farming communities in California, Arizona, and Texas were terrorized by raids, which then expanded north to cities such as Chicago and Spokane, Washington. (“Wetback” is an ethnic slur that originally referred to people who came to the United States by swimming or wading across the Rio Grande.) As historian Kelly Lytle Hernández describes in her book Migra!, federal border agents set up temporary detention facilities surrounded by barbed wire in public parks in Los Angeles. At least 300,000 people were deported during the operation, including a small number of US citizens who were mistakenly swept up. Several people drowned while being transported in vessels that a congressional investigation would later compare to “eighteenth-century slave ships,” and others died from heat exposure after being abandoned in the Mexican desert.

  Operation Wetback expanded the concept of immigration enforcement from something that took place on the border to something that could happen anywhere. But it was September 11 that most profoundly transformed the role of border agents. A year and a half after the attacks, the Bush administration merged the Customs Service and Border Patrol into one agency called US Customs and Border Protection, and put it under the jurisdiction of the massive new Department of Homeland Security (DHS). As the country embarked on its global war on terror, the ranks of CBP surged to more than 44,000, making it the largest federal law enforcement agency in the nation. Today, CBP consists of more than 23,000 customs officers and nearly 20,000 Border Patrol agents.

  During CBP’s rapid expansion, the agency ramped up its use of interior checkpoints, subjecting ever more Americans to warrantless searches, seizures, and detentions near their schools, in their neighborhoods, and on public roads. CBP’s own data suggests that its interior checkpoints do little to catch what it calls “unauthorized entrants” and instead ensnare US citizens on minor drug charges. (Forty percent of its seizures were one ounce or less of marijuana taken from citizens.) From 2013 to 2016, interior checkpoints accounted for only two percent of CBP apprehensions of undocumented immigrants. In May, a circuit court judge in New Hampshire threw out charges against 16 people who were arrested for possessing small quantities of drugs at a checkpoint manned by local police and Border Patrol agents, about 90 miles south of the Canadian border. “While the stated purpose of the checkpoints in this matter was screening for immigration violations,” the judge wrote, “the primary purpose of the action was detection and seizure of drugs,” which he ruled unconstitutional.

  The Trump administration has been aggressively promoting further cooperation between immigration agencies and police departments. Border Patrol agents often accompany officers during routine traffic stops and serve as backup or sometimes as interpreters, but their involvement in domestic policing has had lethal consequences. In 2011, a man in Washington state called 911 because his son, 30-year-old Alex Martinez, who had a history of mental illness, was smashing the windows of their home. Border Patrol accompanied local sheriff’s deputies to the residence, likely because the call was made in Spanish. When they arrived, Martinez stepped out of his house holding something in his hand. Law enforcement say it was a hammer; the family alleges it was a flashlight. A local deputy and a Border Patrol agent, who said they felt threatened, shot Martinez 13 times. Since 2010, watchdog groups have counted 77 CBP-related fatalities—at least one-fifth of them US citizens.

  CBP operates with less oversight than your local police department, despite having one of the largest federal budgets in Washington. The agency doesn’t reveal the names of agents or details of its internal proceedings in fatality or misconduct investigations. Until four years ago, CBP even kept its use-of-force policies secret; they were made public only after a congressional inquiry into a wrongful death resulted in an independent review. CBP hasn’t widely adopted dashboard or body cameras, although it began a six-month pilot project in May. In 2015, the Homeland Security Advisory Council, a panel of law enforcement experts formed by DHS, warned that CBP had no effective process to root out corruption and that its internal affairs office was woefully understaffed. “The true levels of corruption within CBP are not known,” the council warned. “Pockets of corruption could fester within CBP, potentially for years.”

  POLITICIANS HAVE BEGUN TO TAKE NOTE OF CBP’S CULTURE of impunity. In 2008, Patrick Leahy, a senator from Vermont, was stopped at a temporary immigration checkpoint in New York—125 miles from the border. Agents ordered Leahy to get out of his car and asked him to prove that he was a US citizen. When Leahy asked under what authority the Border Patrol agent was acting, the agent pointed to his gun and said, reportedly, “That’s all the authority I need.”

  In 2013, Leahy sponsored legislation to limit the northern border zone to 25 miles for vehicle stops and 10 miles for searches of private land without a warrant. His language was attached
as an amendment to an immigration reform bill that passed in the Senate but failed to make it through the House. (Leahy reintroduced the measure in June. “The need for this legislation has never been clearer,” he said in a written statement, accusing the Trump administration of “aggressive yet wasteful use of immigration enforcement resources” and subjecting citizens to “needless and intrusive searches at Customs and Border Protection checkpoints far from the border.”)

  Meanwhile, in the House, Beto O’Rourke, a third-term congressman from El Paso who is challenging Ted Cruz for his Senate seat, has proposed a bill that would attempt to restrain CBP. O’Rourke, a Democrat, is running a tough campaign in Texas, where Democrats haven’t won a statewide race in 24 years. He supports a legal path to citizenship for Dreamers, opposes Trump’s border wall, and believes that reform is needed at both CBP and ICE. (Cruz has called O’Rourke’s views “radical,” and a spokesperson for his campaign said that O’Rourke would let “criminal aliens run wild around Texas.” Cruz supports Trump’s call for more Border Patrol agents and has been endorsed by their union, the National Border Patrol Council.)

  Like Leahy’s, O’Rourke’s opposition to CBP’s sweeping powers stems in part from his own encounter with border agents. In 2009, he and his two-year-old son were detained at a checkpoint more than 70 miles from the border while agents pulled his truck apart. “They don’t have to explain why they’re holding you,” he said, “and you’re not given the right to an attorney.” O’Rourke told me that he and his son were held in a cell for close to 30 minutes before they were allowed to leave. “It was a strange feeling to be held against my will and to have my car searched,” he said. “I hadn’t committed any crime. I hadn’t even crossed the border.”