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Civil Rights Groups File Federal Lawsuit Against U.S. Border Patrol for Lack of Transparency

November 30, 2016

DETROIT—Citing concerns over potential Constitutional violations, the ACLU of Michigan, Michigan Immigrant Rights Center and researchers today filed a federal lawsuit against the Department of Homeland Security and U.S. Customs and Border Protection (CBP) for the agency’s failure to provide information related to its “100-mile zone” policy—which CBP says authorizes agents to engage in warrantless vehicle searches within 100 miles of any international border or waterway.

According to the lawsuit, federal law gives CBP extraordinary powers to conduct warrantless vehicle searches and detentions within a “reasonable distance” of the border solely for the purpose of preventing illegal entry into the United States. CBP is instructed to set the “reasonable distance” based on local factors. Because CBP has set the “reasonable distance” at 100 miles and considers the Great Lakes to be the “functional equivalent” of an international border, the entire state of Michigan is within the warrantless “100-mile zone.”

“It’s not reasonable to claim that the entire state of Michigan is a border zone. Border enforcement – and the powers that go with it – belongs at the border and not in our communities,” said Miriam Aukerman, staff attorney for the ACLU of Michigan. “Furthermore, CBP, as the largest federal law enforcement agency, must be accountable to the American people. This cannot happen as long as CBP is operating in the dark and refusing to provide even the most basic information about who is being targeted for these warrantless searches, where and why.”

Learn More about the Border Patrol's 100-Mile Zone Policy and the Constitutional Concerns It Raises

In an effort to shed light on the 100-mile zone policy in Michigan, advocates and researchers have attempted unsuccessfully for more than a year to acquire documents under the Freedom of Information Act. The few heavily-redacted documents released so far raise serious concerns about the program as a whole, which CBP claims allows its agents to search the vehicle of motorists anywhere in the state—even those belonging to American citizens and immigrants who are lawfully in the United States—without a warrant.

For instance, according to CBP’s own records, almost one in three people processed by CBP in Michigan is a United States citizen, and almost 40 percent are either US citizens or foreign citizens lawfully in the United States, such as immigrants with green cards. In addition, CBP documents show less than 2 percent of foreign citizens who are stopped as having a criminal record, even though government officials claim this is their priority for immigration enforcement.

“The documents we have gotten so far show that the vast majority of immigrants being detained by Border Patrol are long-term members of Michigan communities. That fact, coupled with the rate at which U.S. citizens are stopped by CBP, gives us clues about the effectiveness and constitutionality of the “100-mile zone” policy,” said Susan Reed, senior attorney with the Michigan Immigrant Rights Center. “In order for the American public to hold CBP accountable and to develop a rational border policy, we need to know more.”

The lawsuit was filed in federal district court by the ACLU of Michigan, along with the Dykema law firm, on behalf of the Michigan Immigrant Rights Center, Dr. Geoffrey Alan Boyce and Dr. Elizabeth Oglesby of the University of Arizona. The lawsuit seeks release of documents CBP has refused to produce, including records of detentions and arrests, agency policies, including any training related to racial profiling, information about where CBP is using its warrantless search and detention powers, and any complaints the agency has received related to the “100-mile zone” policy.

"Before we make decisions in a democracy that requires wide public support to effectively administer, we need to put the full facts out in the open for discussion and debate,” said Sam Damren, a partner with Dykema. “Through this lawsuit and the court’s assistance, if necessary, we seek to do precisely that with respect to CBP’s enforcement activities in Michigan.”

The ACLU and MIRC have long advocated that the 100 mile zone is not reasonable, nor is it reasonable to claim that the entire state of Michigan is within that zone. In addition to the lawsuit, the groups are working with national organizations to seek legislative changes that will ensure Border Patrol operations take place only near actual international boundaries.