Decriminalizing border crossings.

• Author: Romero, Victor C.

ABSTRACT

An international border crosser should only be deemed a criminal if the United States government can prove that, with requisite criminal intent, she engaged in an act aside from crossing the border that would constitute a crime. No longer should crossing the border be a strict liability criminal offense. Doing so will restore balance to the civil immigration system, conserve scarce enforcement resources to target truly criminal behavior, enhance our standing abroad, and help heal our racially-polarized discourse on immigration policy.

TABLE OF CONTENTS Abstract I. Borders and the Law A. A Broader Perspective on Borders and Law: Lessons From a Traffic Stop B. When the Border Becomes the Law: "What Part of Illegal Don't You Understand?" II. Living in a Crimmigration Nation A. Supreme Court Complicity 1. The Plenary Power Doctrine 2. Fourth Amendment Jurisprudence on "Alien" Profiling B. Congress and the Criminalization of Federal Immigration Law C. The Presidency: "Enforcement Now, Enforcement Forever" III. An Alternative: Decriminalizing Border Crossings Conclusion: Bordering on Justice and Fairness I. BORDERS AND THE LAW

Recent national polls suggest that a majority of Americans favor the controversial Arizona bill (1) that makes it a criminal trespass for noncitizens to be present in the state without carrying their immigration documents with them. (2) The law's relevance may be measured in the number of copycat bills that have been introduced into other state legislatures (3) and some municipalities (4) of late. Proponents of the law argue that by criminalizing illegal presence, Arizona will be able to effectively and directly induce undocumented persons to leave the state, not to return under threat of sanction. Opponents respond that only the federal government is authorized to regulate immigration and individual state laws enforced by local police unfamiliar with complex federal immigration laws will inevitably, though unintentionally, resort to racial and ethnic profiling, especially in states with sizeable undocumented Latino populations.

Missing from this dialogue, however, is a serious re-examination of existing federal laws that criminalize border crossings. Constitutional immigration jurisprudence has long held that Congress's plenary power legitimately vests in the federal political branches the sovereign authority to exclude and deport noncitizens, even on racially discriminatory grounds. (5) On a related note, Fourth Amendment law generally recognizes that race may be a factor in deciding whether immigration officers have a reasonable suspicion that a person is undocumented. (6) Accordingly, most people accept the idea that Congress can reasonably decide to criminalize the very act of crossing the United States border, whether from Mexico or Canada.

This essay challenges conventional wisdom by arguing for the decriminalization of international border crossings into the United States, leaving this regulation to the civil enforcement realm. A border crosser should only be deemed a criminal if the federal government can prove that, with requisite criminal intent, she engaged in an act aside from crossing the border that would constitute a crime. No longer should crossing the border be a strict liability crime.

To make this case, I examine the broader concept of "border crossings" in an effort to discern the underlying moral and practical reasons for when and why American society chooses to criminalize such conduct. (7) The tendency to favor strict liability regimes stems from the desire to aid law enforcement in its battle against more serious border crimes--human trafficking, for instance--by relaxing the standard for proving that a crime has been committed. If catching a person close to the border is enough to render her a criminal suspect, then law enforcement automatically has an opportunity to investigate and discern whether she has violated some other crime.

While a useful tool, strict liability regimes also create the temptation to charge the innocent border crosser--the one who has committed no other crime--with the strict liability crime of border crossing. Although one would hope such decisions would be made only when the government strongly suspects but cannot prove more nefarious activity, such power should be severely limited in the immigration context, where the law uniformly treats noncitizens less favorably than citizens as a default. To err on the side of criminalizing innocent border crossings only adds to the stigma that already plagues undocumented persons, most of whom are unable to meet our stringent requirements for admission, and once here, become productive members of our society.

1. A Broader Perspective on Borders and Law: Lessons From a Traffic Stop

   To invoke the law is to invoke a border between legal and illegal conduct, a bright line that separates the owner from the trespasser, the citizen from the foreigner. Children in affluent societies learn from a very early age to invoke the law and borders when they scream, "that toy is mine!"--clutching their favorite toy close to their chest while sternly warning--"... and I'm going to tell Dad you tried to get it!" Similarly, in the United States, the idea of demarcating and respecting private property boundaries finds protection in our Constitution's due process clauses. (8) Additionally, all over the world, albeit to differing degrees, nation states recognize the importance of territorial sovereignty that boundaries help define and support. From the personal, to the corporate, to the global, the law helps give borders shape and substance, contributing to the ordering of civilized society.

   Three policy questions emerge from a discussion of law and borders. First, when should the law formally recognize a border, whether personal or corporate, private or public? Second, when is that border unlawfully transgressed by another's actions? And third, what legal consequence should follow that border transgression? In sum, these questions focus on the reason for, the breach of and the consequences of breaching the border.

   To put these questions in context, consider the following example. The Fourth Amendment recognizes that we each enjoy a right to be free from unreasonable governmental searches. (9) This provision ensures that law enforcement respects individual privacy. A clear example of a Fourth Amendment violation would be if the government, without a warrant, ransacks your house looking for contraband, causing extensive damage to your property, but finding nothing. (10)

   While seemingly clear on its face, this border between private space and legitimate police action is a highly contested one. To tease this issue out, my encounter with a Los Angeles police officer should help illustrate this murky line even further.

   When I was a first-year law student, I was legitimately stopped by a police officer on a California freeway en route to the Los Angeles airport to pick up my girlfriend. I had recently moved to Los Angeles from New York, had not driven in months, and was borrowing a friend's car. It was evening on the busy Los Angeles freeways and my driving was less than stellar. Seeing the patrol car's flashing lights in my rearview mirror, I obediently pulled over and waited anxiously for the officer to approach.

   Having studied and taught Criminal Procedure, I know now (though I probably would have expected it then) that even though this was not my car, I enjoyed a privacy interest in it; therefore, the officer could not enter the car to search it without my permission or some other legitimate excuse. (11) There was a legal border between the officer and me, which he knew about, and I, at the time, instinctively assumed.

   And so, I was a bit surprised when the officer's first words to me were, "I smell marijuana in there." Not "how are you doing this evening?" or "is everything all right?" but, "I smell marijuana in there." Because of my erratic driving, perhaps the officer suspected that I might be under the influence of drugs or alcohol. Maybe the car was the type used by drug gangs; maybe driving toward the airport was another clue that I was a drug runner. Based on his experience, the officer may have been preparing for the worst.

   This would all have been reasonable and admirable police work, except that the car did not smell of marijuana, I had not been smoking marijuana, and I was not under the influence of drugs or alcohol. Looking back on the incident, I can only conclude that the officer made this story up so he would have a legitimate reason to search the car.

   Upon hearing this, I quickly but politely denied that I was under the influence and calmly explained the reasons for my erratic driving, apologizing contritely. ! presented my valid New York driver's license and confessed to my unfamiliarity with both my friend's car and Los Angeles driving conditions. The officer's face softened slightly, letting me go with an admonition to drive more carefully.

   Going back to our three questions regarding the reason for, the breach of and the consequences of breaching the border, this story (1) involves a law that establishes a border protecting the individual from unlawful governmental conduct; (2) allows for an exception that privileges an officer's warrantless search of a vehicle if the officer smells drugs; but otherwise, (3) recognizes possible sanctions against the officer if the search is not reasonable.

   Here, no search was conducted and the officer respected the border between us. Yet, what do we make of the officer's false allegation that he smelled marijuana? Some might argue that his actions were entirely justifiable because if he found drugs, then his "error" was harmless, and if he did not, I would be in the same position anyway, save the extra time of having had to endure a vehicle search. Officers put themselves in harm's way daily; as between the innocent driver and the harried...