Sunday, November 16, 2014

Mendacity Motivates The War On The Border Patrol

And perhaps just a little stupidity as well.  But one would expect a reporter for a respectable newspaper to do some research on the internet before he writes a series of articles on the U.S. Border Patrol (USBP) and their legal authority to enforce immigration law.  In this case it is Jeremy Schwartz, alleged expert for the Austin American-Statesman on all things border, drugs, and immigration related.  And, of course, Schwartz is a native Bostonian, but not of the Brahmin variety, more of the Tribe, not a Texan. And Schwartz is part of the ongoing war on immigration enforcement, and the Border Patrol in particular.

It appears that an experienced reporter is incapable of getting beyond the name of the USBP, e.g. Border Patrol.  One might expect that someone without a journalism degree and many years in the field in Texas and Mexico would perhaps be confused that USBP Border Patrol Agents (BPA), that is their official title, work beyond the border, well into the interior of the United States, in fact, throughout the United States, and American possessions in the Caribbean Sea, including the Virgin Islands, Florida, and Puerto Rico.

But first, Schwartz' obsession and white whale, USBP arrests away from the border in Texas.

Austin American-Statesman November 1, 2014 by Jeremy Schwartz
Border Patrol’s Inland Authority Has Tangled History
The Border Patrol’s operations in the interior have been a point of conflict since at least the birth of the modern incarnation of the agency a dozen years ago. After 9/11, the newly created Homeland Security Department split enforcement efforts between the Border Patrol and Immigration and Customs Enforcement, or ICE.
Generally, ICE was to conduct interior investigations while the Border Patrol focused on border-related interdiction. In reality, however, the split has led to confusion over roles that not even federal investigators have been able to untangle.

Well, he did get one thing correct, there is an issue between U.S. Immigration and Customs Enforcement (ICE) Special Victims Unit (SVU), more properly known as Homeland Security Investigations (HSI), previously known as ICE Office of Investigations (OI).  There was a Memorandum of Understanding (MOU) signed by an Assistant Secretary on behalf of ICE OI and the Commissioner of Customs and Border Protection (CBP), the parent agency of the USBP, that outlined their shared responsibilities for immigration law enforcement, there was nothing in the MOU that restricted USBP activity, much less authority, which was governed by statute and regulation, legal authority superior to an MOU in any event.

In fact, the MOU with ICE was not much different than the practical separation of law enforcement activity from that under the legacy Immigration and Naturalization Service (INS) where the INS Deputy District Director for Investigations (DDDINV) coordinated the work of his office into worksite enforcement, anti-smuggling, fraud investigations, and general immigration enforcement in the interior and the border with the USBP, especially anti-smuggling efforts, but both shared worksite enforcement and other enforcement activity, throughout the United States.  In general, the lead between the two would depend on staffing levels in a particular USBP Sector and corresponding INS District in the same geographical area.  There was of course much rivalry and precious little cooperation, but the component with the most agents (BPA or Special Agents) would be the lead.

However, what shocks the knowledgeable reader of Schwartz is that what little research he did on either the actual current practice between OI and USBP, the historic practice with the INS, and the law and regulation itself.  A cursory Google search would have revealed important information on USBP legal authority to stop, question, and arrest aliens in the interior of the United States.  But it appears Schwartz has an agenda, a pernicious one.

First, the law itself, and remember its a law passed by Congress, something one would think a reporter without an agenda would consider an important starting point for any article on the authority and practice of the Border Patrol.  Apparently that was lost on Schwartz.

Legal Information Institute
8 U.S. Code § 1357 - Powers of Immigration Officers and Employees
(a) Powers without warrant
Any officer or employee of the Service authorized under regulations prescribed by the Attorney General shall have power 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 law or regulation made in pursuance of law regulating the admission, exclusion, expulsion, or removal of aliens, or to arrest any alien in the United States, if he has reason to believe that the alien so arrested is in the United States in violation of any such law or regulation and is likely to escape before a warrant can be obtained for his arrest, but the alien arrested shall be taken without unnecessary delay for examination before an officer of the Service having authority to examine aliens as to their right to enter or remain in the United States;
(3) within a reasonable distance from any external boundary of the United States, to board and search for aliens any vessel within the territorial waters of the United States and any 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, for the purpose of patrolling the border to prevent the illegal entry of aliens into the United States;
(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 he has reason to believe that the person so arrested is guilty of such felony and if there is likelihood of the person escaping before a warrant can be obtained for his arrest, but the person arrested shall be taken without unnecessary delay before the nearest available officer empowered to commit persons charged with offenses against the laws of the United States; and
(5) to make arrests—
(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.

Very broad authority, and note that it is not restricted to officers of the Service, it includes all employees, down to the lowliest clerk.

And the Service is given broad authority in establishing standards and methods for identifying, investigating, stopping, and arresting illegal aliens.

Under regulations prescribed by the Attorney General, an officer or employee of the Service may carry a firearm and may execute and serve any order, warrant, subpoena, summons, or other process issued under the authority of the United States. The authority to make arrests under paragraph (5)(B) shall only be effective on and after the date on which the Attorney General publishes final regulations which
(i) prescribe the categories of officers and employees of the Service who may use force (including deadly force) and the circumstances under which such force may be used,
(ii) establish standards with respect to enforcement activities of the Service,
(iii) require that any officer or employee of the Service is not authorized to make arrests under paragraph (5)(B) unless the officer or employee has received certification as having completed a training program which covers such arrests and standards described in clause (ii), and (iv) establish an expedited, internal review process for violations of such standards, which process is consistent with standard agency procedure regarding confidentiality of matters related to internal investigations.

And the Service, the legacy INS, had broadly written regulations approved by the Attorney General for implementing its authority:

Legal Information Institute
8 Code of Federal Regulations (CFR) 287.5 - Exercise of Power by Immigration Officers
87.5 Exercise of power by immigration officers.
(a) Power and authority to interrogate and administer oaths. Any immigration officer is hereby authorized and designated to exercise anywhere in or outside the United States the power conferred by:
(1) Section 287(a)(1) of the Act to interrogate, without warrant, any alien or person believed to be an alien concerning his or her right to be, or to remain, in the United States, and
(2) Section 287(b) of the Act to administer oaths and to take and consider evidence concerning the privilege of any person to enter, reenter, pass through, or reside in the United States; or concerning any matter which is material or relevant to the enforcement of the Act and the administration of the immigration and naturalization functions of the Department.
(b) Power and authority to patrol the border. The following immigration officers who have successfully completed basic immigration law enforcement training are hereby authorized and designated to exercise the power to patrol the border conferred by section 287(a)(3) of the Act:
(1) Border patrol agents, including aircraft pilots;
(2) Special agents;
(3) Immigration inspectors (seaport operations only);
(4) Adjudications officers and deportation officers when in the uniform of an immigration inspector and performing inspections or supervising other immigration inspectors performing inspections (seaport operations only);
(5) Supervisory and managerial personnel who are responsible for supervising the activities of those officers listed in this paragraph; and
(6) Immigration officers who need the authority to patrol the border under section 287(a)(3) of the Act in order to effectively accomplish their individual missions and who are designated, individually or as a class, by the Commissioner of CBP, or the Assistant Secretary for ICE.
(c) Power and authority to arrest—
(1) Arrests of aliens under section 287(a)(2) of the Act for immigration violations. The following immigration officers who have successfully completed basic immigration law enforcement training are hereby authorized and designated to exercise the arrest power conferred by section 287(a)(2) of the Act and in accordance with 8 CFR 287.8(c):
(i) Border patrol agents, including aircraft pilots;
(ii) Special agents;
(iii) Deportation officers;
(iv) Immigration inspectors;
(v) Adjudications officers;
(vi) Immigration enforcement agents;
(vii) Supervisory and managerial personnel who are responsible for supervising the activities of those officers listed in this paragraph; and
(viii) Immigration officers who need the authority to arrest aliens under section 287(a)(2) of the Act in order to effectively accomplish their individual missions and who are designated, individually or as a class, by the Commissioner of CBP, the Assistant Secretary for ICE, or the Director of the USCIS.

Note that there are no geographic restrictions on where an immigration violation arrest may be made by Border Patrol Agents.  The only geographic restrictions are on entering private property within 25 miles of the border and warrantless stopping of persons "...within a reasonable distance from any external boundary of the United States..." which courts have ruled is 100 miles for checkpoints and other stops.  Of course, given the 20 million or more illegal aliens in the United States, and the proliferation of international airports in the interior of the United States, any warrantless stop in the interior is objectively reasonable.  But given reasonable suspicion under Terry v. Ohio, only a set of articulable facts relating to alienage are necessary at any unreasonable distance.

Schwartz, though, was not interested in facts, but was obsessing over the border and the Border Patrol.  For him, any arrest appears objectively unreasonable if it is more than 100 miles from the border.

Yet a Statesman investigation shows the Border Patrol has continued its interior operations. Over the last decade, the agency has made over 40,000 apprehensions in the Texas interior, prompting civil rights groups to accuse the agency of racial profiling and unconstitutional stops of U.S. citizens.

What Schwartz does not understand, stopping someone, even detaining them, is legal and constitutional, even if they are innocent of the crime the Border Patrol Agent, or any law enforcement officer, is investigating.  An investigative stop, as described in Terry, is not an arrest, nor is it a violation of the 4th Amendment.  Most people stopped by the police are innocent of the crime suspected by the officers, and those people go on their way after a brief interlude. And despite Schwartz's shock that the Border Patrol "continued" its interior enforcement, interior enforcement by the Border Patrol never ended, and has been ongoing since its inception.

But the real issue is a campaign against interior enforcement of any nature.  To date, ICE SVU has abandoned interior enforcement of immigration laws.  Consequently, Schwartz and his ilk, are waging a campaign against it, and succeeding:

More recently, the debate over the Border Patrol’s own boundaries has reflected the political discussion over how best to enforce immigration policy. In 2012, federal officials proposed deactivating nine Border Patrol interior stations and relocating the agents to the immediate border area. The stations included six in Texas, located as far north as Amarillo, 350 miles from the Mexico border. 
Federal officials cited budget savings, but also said the move was consistent with the agency’s “strategic goal” and that massing resources “at or near the border” would be more effective.
Not effective, but ineffective, but that's the point of the non-enforcement policy:
Even before the effort to close the stations, Border Patrol agents claimed officials were sabotaging their interior work. At the Riverside, Calif., station, about 100 miles from the border, agents last year accused the department of diverting inland agents away from busy highways and bus stations to quieter roadways, causing apprehension numbers to plummet. 
“We need the political will to do interior enforcement,” said Shawn Moran, spokesman for the National Border Patrol Council, the national union representing Border Patrol employees. “Roving patrols definitely have their deterrent effect.”

What angers and confounds Schwartz is that the Border Patrol is arresting illegal aliens far from the border.  But what disappoints Schwartz is that the Border Patrol beside patrolling the border, also had worksite and agricultural worksite enforcement responsibilities far from the border.  In fact, Border Patrol Stations, as USBP offices are known, were located throughout the United States, especially in interior agricultural areas, like Tracy, CA, 400 miles from the Mexican border,  until the Jorge Bush Administration closed many interior Border Patrol Stations as part of its own Administrative Amnesty.

But it is not until Schwartz' next article on the Border Patrol do we find out why Schwartz is so hot and bothered about Border Patrol enforcement activity:

It's Jaime Zaldaña, confessed illegal alien.




Austin American-Statesman November 1, 2014 by Jeremy Schwartz 
Border Patrol Makes Many Arrests Deep In The Heart Of Texas

And he leads with his unstated for the reader goal, ending immigration law enforcement in Texas.

Critics call interior arrests unlawful; agency might be curbing their use.

Neither, of course, is true.  Interior arrests are lawful, authorized by Title 8 United States Code Section 1357.  But the Obama Regime is neutering the Border Patrol by policy.

Jaime Zaldaña was driving to work on Interstate 35 through the San Antonio suburb of Schertz on a winter morning in 2010 when his red pickup passed a U.S. Border Patrol unit on the side of the highway. He was 150 miles from the nearest border crossing, in Eagle Pass.
The agents would later write that Zaldaña and two co-workers “appeared to be startled” and looked “straight ahead,” never acknowledging them — reason enough, they claimed, to pull the truck over. Zaldaña was eventually deported as an undocumented immigrant, but not before the U.S. government paid $25,000 to settle his claim the agents stopped him only because of his ethnicity and race, according to public court documents.

Then, again, he goes to the "border" in Border Patrol issue.

Most Texans probably think of the Border Patrol as doing what the agency’s name suggests: interrupting illegal activity along the line separating the U.S. from Mexico. Yet over the last decade, agents have regularly made arrests deep inside Texas, according to an American-Statesman investigation into the little-known realm of the Border Patrol’s interior enforcement operations.

Sorry, the Border Patrol has been making arrests in the interior for a long time.

Between 2005 and 2013, agents apprehended more than 40,000 subjects at the nine most inland Border Patrol stations representing locations as far as 350 miles from Mexico — an average of more than 10 per day, according to numbers obtained under the Freedom of Information Act.

And Border Patrol interior enforcement long predates 2005, just ask the illegals arrested in Operation Wetback, millions were deported from the interior mostly by Border Patrol Agents working with local police in the 1950s.

But then we get to the real issue, racial profiling, or more accurately, using race as one factor in making a stop:

“You ask yourself: what else do (Border Patrol) agents have to go on besides race?” said San Antonio immigration attorney David Armendáriz, one of the few attorneys nationally to regularly pursue such cases. “What does an immigrant without papers look like? Because your average immigrant without papers looks like your average Hispanic.”

Which looks like the average illegal alien. Of the 11 million official illegal alien population estimate, Mexico, El Salvador, Honduras, Ecuador, and Nicaragua account for approximately 8.5 million of that illegal alien population.

It is not about racial profiling though, it is about allowing illegal aliens to remain for the ongoing Obama Regime Administrative Amnesty, and them voting Democrat in the then upcoming election at the time of the writing of the article as part of the Turn Texas Blue campaign, and the United States after that, through voting by illegal aliens and legal aliens.

The campaign against the Border Patrol is part of the campaign to elect a new people and destroy the historic American nation.

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