Ryan McMaken – July 15, 2019
In the United States, the legal system is supposed to begin with a presumption of innocence. If the government suspects someone of wrongdoing, it is up to the government to prove wrongdoing. The burden of proof lies with government agents.
But that’s not how the immigration system works. When someone is detained by immigration agents, it is up to the suspect to prove he is not a criminal. Otherwise, the suspect may be held for long periods without due process, or even deported.
And we shouldn’t kid ourselves by thinking only foreign nationals get caught up in this system. Since the only thing legally separating citizens from non-citizens is the proper government-approved paperwork, US citizens can easily fall into the same guilty-until-proven-innocent trap as anyone else.
The Burden of Proof Is On You
The US government can, and does, arrest and imprison American citizens under suspicion of being illegal aliens.
Imprisonment (i.e., “detainment”) can last periods of several days in many cases, to a year or more in extreme cases. Even a short period of detainment can lead to one losing his job or missing a rent payment.
Just how often are US citizens wrongly detained? Among detainees who claim to be US citizens, The Los Angeles Times estimates the figure may be as high as 18 percent:
In the seven and a half years ending in February, ICE reviewed 8,043 citizenship claims of people in custody, according to figures provided by the Department of Homeland Security. In 1,488 — nearly a fifth of those cases — ICE lawyers concluded the evidence “tended to show that the individual may, in fact, be a U.S. citizen,” a DHS spokeswoman said.
Cases include Sergio Carillo, a landscaper who was snatched by government agents in a Home Depot parking lot, and Jilmar Ramos-Gomez, a former US Marine detained and slated for deportment in Michigan. The fault lies primarily with government agents who are not especially competent, precise, or interested in conducting strenuous investigations. Agents are rarely disciplined for arresting the wrong people or for failure to properly investigate claims of citizenship. As The Times concludes, those who are wrongly detained are done so as a result of “incomplete government records, bad data and lax investigations.”
Moreover, agents have been shown to forge documents and skip required review processes. As one CNN investigation showed , immigration agents used improper documentation in order to avoid working on weekends and to make more arrests:
officers … had improperly signed warrants on behalf of their supervisors — especially on evenings or weekends. Some supervisors even gave their officers pre-signed blank warrants — in effect, illegally handing them the authority to begin the deportation process.
Sometimes, immigration agents refuse to accept documents from other governments agencies.
In southern Texas, for example, immigration agents have begun claiming that US birth certificates — issued by government agencies — are not valid. In other words, one government agency is stripping American citizens of citizenship because the agency suspects that another government agency improperly issues birth certificates.
This, by the way, is often being done decades after the fact. According to the Texas Standard:
Hundreds, perhaps thousands of people with birth certificates showing they were born in south Texas are being denied passports – or they’re having them revoked. Their citizenship is now challenged because the State Department doesn’t believe they were really born in the U.S.
In one case, Washington Post reporter Kevin Seiff notes an American who “in the past had a U.S. passport.” But when the man applied for a renewal, “Instead of getting a new passport in the mail, what he got was a letter from the State Department saying that they did not believe he was in fact born in the U.S.”
In these cases, adult Americans must dig through their pasts to find evidence they were born in the US.
Until then, these people are essentially rendered stateless. They can’t legally leave the country because that requires a passport. And they certainly can’t legally re-enter.
So much for “innocent until proven guilty.”
It Didn’t Begin with Trump
Among those [who] spend their days stewing about All Things Trump, there may be a temptation to blame all of these issues on the most recent moves from the Trump administration.
But that would be wrong.
Historically, wrongful deportations are hardly something invented after 2016. During the aggressive roundups of immigrants during the Great Depression, many Americans were deported in an age when government documentation of births and citizenship was even more haphazard than it is now. According to historians Francisco E. Balderrama and Raymond Rodriguez in Decade of Betrayal, “approximately 60 percent of those summarily expelled [during the 1930s] were children who had been born in the United States and were legally American citizens.”
But modern problems with enforcement certainly pre-date the Trump administration. Cases of Americans suddenly being denied passports go back at least to the George W. Bush administration, and continued through the Obama years. Many of the cases of Americans illegally detained by ICE occurred on Obama’s watch.
The 100-Mile Border
American citizens — not to mention other legal residents — can easily be caught up in a variety of government dragnets and checkpoints thanks to the invention of the 100-mile border zone, within which border agents can question and detain Americans for a variety of reasons.
These powers to stop and question any American date only from 1946, as described by Vox :
Congress gave immigration agents enormous power when they passed the Immigration and Nationality Act of 1946. The law granted immigration agents the authority “to interrogate any alien or person believed to be an alien as to his right to be or to remain in the United States” and to “board and search for aliens any vessel within the territorial waters of the United States and any railway car, aircraft, conveyance, or vehicle.” However, they could only do this “within a reasonable distance” from an external US boundary.
At first, this “reasonable distance” was 25 miles. But it was unilaterally extended by the Department of Justice to 100 miles without any change to the statute. Given that “the border” includes both land and water borders, two-thirds of Americans live within this border zone. Entire states are included within the zone, including Florida, Michigan, and Maine.
Consequently, the border patrol can set up checkpoints and force Americans into long queues in which motorists may wait for an hour or more as federal agents attempt to question and search occupants in each vehicle.
This, of course, amounts to stopping and questioning Americans without any reason to suspect wrongdoing beyond the fact the person is physically present in the United States. There are reportedly 170 checkpoints operating throughout the country.
The Border Patrol claims these encounters are constitutional because these “conversations” between federal [a]gents and their targets are “consensual.” Agents rely primarily on implied threats to gain compliance from Americans.
Thus, Americans are technically able to refuse to answer questions, although federal agents will respond to efforts to assert one’s rights with de facto detainment and incorrect claims of legal authority.
(Many of these encounters are filmed and posted on sites like YouTube where Americans can often be seen treating Border Patrol agents at these checkpoints with the contempt they deserve.)
The potential for abuse is significant. As with regular police officers, immigration and border agents are rewarded for high arrest rates, regardless of whether or not those arrests lead to sustained prosecutions and determinations of guilt. Agents have no reason or incentive to carefully or quickly investigate claims of citizenship and legal status.
The Americans who are presumed guilty, on the other hand, face jail time and a loss of the freedom to travel should federal agents decide for themselves — without documented evidence — that an American is present in the US illegally.
Just One Way Immigration Law Violates Property Rights of Americans
Americans, of course, don’t have to be detained, arrested, and questioned about their citizenship to have their property rights abused by the federal government.
This occurs every time immigration agents prosecute an employer for hiring workers without the proper government paperwork, or for renting an apartment to tenants who are deemed “illegal.” In cases like these, the right to trade peacefully with others is rendered null and void.
[RELATED: “4 Ways to Improve Immigration Policy — Without Growing Government“]
But who can be surprised at the incompetence and the abuse? After all, this organization (i.e., the federal government) is the same organization that runs hellhole VA hospitals, routinely steals private property through the war on drugs, and doesn’t want you to know just how much money it’s wasted on yet another failed war.
Advocates for immigration controls will complain: “So, what, you just want open borders?” This question implies a false dichotomy. There are options beyond only open borders or a super-charged federal leviathan. Moreover, the open-borders accusation is mostly a method for distracting from an ends-justify-the-means position which tacitly accepts detainment, questioning, and imprisonment of legal US residents in which the burden of proof is on peaceful citizens minding their own business.
The advocates of greater immigration crackdowns rarely offer alternatives that respect the property rights of Americans, and instead choose to look the other way as the Bill of Rights is ignored in the name of catching bad guys.
Never mind the fact that most of these “essential” powers of the border patrol are new and unconstitutional innovations. Somehow, the United States managed to survive before the Border Patrol had the ability to stop and question any American within its 100-mile border zone. Somehow, the US was not besieged by anarchy before the feds decided to start voiding the birth certificates of Americans.
Federal law enforcement powers tend to look reasonable until one examines the details of enforcement. And then the fraud, abuse, and wholesale violations of rights become ever more apparent. But none of this is surprising.
Perhaps Lew Rockwell said it best: “Here’s the problem. If you give government a job to do, even one that seems justified in the abstract, it will use its power to make a terrible mess in practice.”
This article was originally published at Mises.org. Ryan McMaken is a senior editor at the Mises Institute. He has degrees in economics and political science from the University of Colorado, and was the economist for the Colorado Division of Housing from 2009 to 2014. He is the author of Commie Cowboys: The Bourgeoisie and the Nation-State in the Western Genre.
Image source: Getty